1986 PLP 2391 (MLD)

3. The first contention of the learned counsel for the petitioner is that Jan Muhammad had no locus standi being an outsider, he was not competent to take an appeal to the Board of Revenue because the parties to the dispute were the petitioner and the Government, therefore, the order of the Member, Board of Revenue (respondent No.1) is a nullity in the eye of law being without jurisdiction as such liable to be declared as without lawful authority and of no legal effect. In support hereof she has relied upon Nisar Ahmad and 2 others v. Additional Secretary Food and Agriculture, Government of Pakistan Islamabad and 3 others 1979 S C M R 389 wherein it has been observed:‑ "It is a sine qua non for invoking the writ jurisdiction of the High Court under Article 199 of the Constitution of Pakistan (1973) that the petitioner should be an aggrieved person. He must, therefore, establish a direct or indirect injury to himself and substantial interest in the subject‑‑matter of the proceedings." Muhammad Aslam Khan v. The Government of Punjab and 2 others PLD 1973 Lah.. 120 in which it has been held:‑

"Person aggrieved is one against whom a decision has been pronounced which decision has wrongfully refused him something which he had aright to demand." Mr. Manzur Qadir v. Amtul Hussain P L D 1971 Lah. 537 in which it has been observed:‑ "Ordinarily, no person, unless he is a party to the proceedings in the Court below, is entitled to appeal. But in exceptional cases, a person who is not a party to the proceedings in the lower Court, may prefer an appeal with the leave of the Appellate' Court, and such should be granted, if he would be prejudicially affected by the judgment appealed against:" Farida Khan v. Chairman, Karachi Municipal Corporation 1971 S C M R

109. In this case according to the terms of lease deed the lessee was liable to pay municipal taxes and was in fact paying those. The owner of demised property challenged order of assessment by way of a writ petition in the High Court. It was held that the owner in the circumstances was not an "aggrieved party" as such had, no locus standi to maintain the writ petition.

4. The learned counsel for the petitioner has next contended that the lease was for a period of ten years of which the allotment order was made in 1970. The Policy Letter No.5804/269/Rem/C issued in April 1968 governed the term as to the period of the lease. In this behalf she has relied on Sardar Muhammad Aslam Sial v. Government of Pakistan etc. P L D 1973 Note 148 at p.225. The position so taken up by the learned counsel does not help the petitioner because on the face of the record the allotment was expressly made on 18‑8‑1970 for a period of four, years with effect from 11‑8‑1967 further renewable after a period of three years.

5. On merits the learned counsel for the petitioner has maintained that the above‑said tenancy has been with the family of the petitioner since 1923 with renewals from time 'to time of which the petitioner is allottee from 1967. The previous record is not a relevant consideration against the petitioner. The petitioner had been producing a mare and if she did not yielded a foal for some time that was not his fault, as required by the conditions he had been regularly maintaining the mare without committing breach of the terms of tenancy. No opportunity had been given by the Remount authorities to the petitioner to produce another mare. The applications addressed to the District Remount Officer for replacing the mare were not accepted and were returned. Thereafter the bound mare improved in condition and yielded a foal on, 14‑5‑1975. Now the petitioner has got the mare again pregnated. As to the development of the land the petitioner and his family have laboured hard and spent a large amount of money.

6. The learned counsel for the petitioner as a last limb of her arguments has submitted that the appeal to the learned Commissioner was competent since the review application filed by the petitioner was not rejected on merits and had been done so only on the technical ground that the learned Collector was not competent to enter upon a review of the order passed by his predecessor so that could not be regarded as an order refusing to review within the meaning of section 163 (4) so as to bar an appeal. It has been further submitted that the appeal has been rightly decided by the learned Commissioner to afford another opportunity to the petitioner to maintain the bound mare upto

7. Mr. Riaz Anwar Advocate has appeared on behalf of the legal representatives of respondent No.2 namely Jan Muhammad. However, as to his locus standi the learned counsel has relied on H.M. Saya & Co. v. Wazir Ali Industries P L D 1965 S C 65 and the case of Mr. Manzur Qadir (supra). In the case of H.M. Saya & Co. the, learned Judges of the Supreme Court have observed that a stranger to suit or proceeding is competent to file an appeal if he is adversely affected by an order passed in such suit or proceeding. The observation as to the other decision referred to has already been made above. Next the learned counsel has submitted that appeal to the Commissioner was not competent under section 163 (4) of the West Pakistan Land Revenue Act, 1967 because the appeal was directed against an order of the Collector, dated 18‑8‑1979 by which he had refused to review the earlier order passed by his predecessor and if the appeal is treated from the order, dated 5‑7‑1978, the date of the order of the Collector resuming the tenancy, then the appeal is clearly time‑barred. The limitation period being sixty days the Commissioner had no jurisdiction to condone the delay because section 5 of the Limitation Act has not been made applicable. In so far as the writ petition is concerned the petitioner has not challenged the finding of the Member, Board of Revenue as to the breaches on the basis of which the tenancy 'was resumed. The petition is silent as to this aspect. The finding of the Member, Board of Revenue, is based on the consideration of the relevant material so it cannot be disturbed. On merits the petitioner has no case, for this the learned counsel has referred to two letters of the District Remount Officer recommending resumption of the tenancy on account of the poor performance of the undertaking given by the petitioner. All the details of several breaches have been in the report of the District Remount Officer. The learned counsel has, in this behalf, relied on Sub: Muhammad Asghar v. Mst. Safia Begum and another P L D 1976 S C 435 wherein it has been observed that due weight is to be attached to the recommendations of the District Remount Officer and towards the close of his arguments the learned counsel has maintained that the writ petition is liable to be dismissed.

8. The learned. Assistant Advocate‑General appearing on behalf of respondent No.1, has argued that the basic order of the Collector, dated 5‑7‑1978 is not illegal and without lawful authority. The order does not fall to be interfered with, within the exercise of the Constitutional jurisdiction of this Court. The tenancy was resumed on certain breaches of the terms and conditions of the tenancy and there being questions of fact involved, the ratio in the case of Muhammad Hussain Munir v. Sikandar and others P L D 1974 S C 139 stands attracted and as to the resumption of the tenancy it is the satisfaction of the Collector himself which cannot be questioned by any Court. It has been observed:‑ "These are expressions of art and refer to jurisdictional defects as distinguished from a mere erroneous decisions whether on a question of fact or even of law. It is well‑settled that where a Court or a tribunal has jurisdiction and it determines that question, it cannot be said that it acted illegally or with material irregularity merely because it came to an erroneous decision on a question of fact or even of law." Next the learned Assistant Advocate‑General has referred to para. 4 of the scheme as to the terms and conditions of the lease for which period prescribed is four years and thereafter renewable after a period of 3 years and then he has referred to section 24 of the Colonization of Government Land Act, 1912 which empowers the authority either to impose penalty or order the very resumption of the lease and according to him the resumption was ordered rightly there with due compliance of the abovesaid provisions. The petitioner was given full opportunity of being heard and the land was resumed thereafter when the petitioner had failed to satisfy the Collector. The petitioner's lease was though renewable he had not applied for any renewal except that on recommendations lease was granted for a period of four years. The renewal is not automatic and as a matter of right the eligibility of the renewal is subject to fulfilling of the terms and conditions of the lease. The learned Assistant Advocate‑General has also emphasised that the appeal to the learned Commissioner was not competent as it was not directed against the order of resumption and if it is treated as a revision then the scope for interference is limited one. He has concluded 'his submissions by submitting that the petitioner has not challenged the finding of ‑facts arrived at by the Collector, therefore, the petitioner has in fact no case to agitate before this Court. However, the learned Assistant Advocate‑General has placed reliance on Muhammad Ashraf v. Muhammad Sharif and 3 others P L D 1971 Lah. 610, wherein it has been observed that a tenant holding over as a matter of course is taken to be governed by the old terms and conditions‑of the lease, so on the old terms and conditions the tenancy has been validly., resumed.

9. As to the legal position obtaining in this case it is worth noting that the Collector's refusal to review was on the misconception as to the law that the Collector could, not review the order passed by hi predecessor. In law a condition has been attached to such a review and `that is that a Collector can review the order of his predecessor under section 163(2)(a)(ii) of the West Pakistan Land Revenue Act after having obtained permission from the Commissioner. Therefore, such an order cannot be treated effective for the purposes of barring an appeal because review had been refused on a wrong conception of law. Subsection (4) to section 163 of the West Pakistan Land Revenue Act on the basis of which respondent No 1 set aside the order of the Commissioner in appeal primarily, is not attracted and it is still interesting to note that the memorandum of appeal filed before the learned Commissioner contained the date of the order sought to be set aside as 18‑8‑1979, which was termed as an order by which the tenancy of the petitioner had been ordered to be resumed with immediate effect From the context of the memorandum of appeal what can be gathered is that the order resuming the tenancy, has been attacked out and out and not the order of review though the date mentioned in the heading is the, date of the order refusing to review. It is clearly set out in the prayer that "it is therefore, humbly prayed that the order of resumption may kindly be set aside and the tenancy be allowed to remain with the appellant as a horse breeding tenancy." The date mentioned as 18‑8‑1979 appears to be a clerical error because in clear words otherwise the appeal seems to have been filed against the order of resumption. Therefore, the appeal on the face of it can be treated as an appeal from the original order of resumption. No doubt the learned Commissioner proceeded to decide the matter against the order, dated 18‑8‑1979 passed by the District Collector refusing to review as is obvious from his order, yet as to the substance of the order the learned Commissioner appears to have in substance considered and disposed of the appeal against the resumption order without deciding that whether review was rightly refused or wrongly. As to the period of limitation in filing the appeal before the Commissioner from the order, dated 5‑7‑1978 in keeping with the abovesaid aspect, Narindar Singh v. Shib Devi P L D 1950 Punjab (Revenue) 96 can be quoted with an advantage‑ "I have heard the parties. The Commissioner's order rejecting the appeal is quite meaningless. It means that the appeal before him was against an order rejecting an application for review he is wrong; it is an appeal against the original order in appeal. If it means that because an application for review has been made and rejected, it is totally wrong proposition of law. If it means that the appeal is now time‑barred, it is wrong the time prosecuting the review may be deducted ." The order of resumption of the tenancy was passed on 5‑7‑1978. The application for review was filed on 11‑7‑1978 and order on it was passed on 18‑8‑1979. Thereafter an appeal before the Commissioner, was filed on 19‑9‑1979, thus excluding the time spent in review, the appeal was filed within time.

19. However, the question which is decisive of this writ petition is whether Jan. Muhammad, predecessor of the petitioner's had any locus standi to become a party and therefrom to carry a second appeal before the Board of Revenue, meaning thereby that whether the appeal before the respondent Board of Revenue was competently brought. The position of Jan Muhammad was that he had after resumption of the tenancy from the name of the petitioner made an application for grant of lease under Horse Breeding Scheme. Mere filing of an application did not invest him with any interest for which he could claim legal protection, as such, he had no place within the proceedings which were between the petitioner and the Collector as by that time he had not acquired anything except his unilateral filing of the above-said application and, therefore, he could not claim a direct or indirect injury to himself because he happened to have no substantial interest in the subject matter of the proceedings. Despite having been allowed to join as a party in the appeal filed by the petitioner before the Commissioner, an objection had been raised by the petitioner as to the locus standi of said Jan Muhammad, which remained undisposed of although the same was mentioned in the order of the Commissioner. Jan Muhammad had no locus standi to be a party before the Commissioner and as such, had no locus standi to carry an appeal therefrom the order of the Commissioner to the Board of Revenue. The appeal taken to the Board of Revenue against the order of the learned Commissioner, was not: carried by an aggrieved person because in the language of the above quoted decision P L D 1973 Lah. 120, the order had not wrongfully refused him something which he had a right to demand. So the appeal, filed before the Board of Revenue being incompetently there, the impugned order, dated 14‑10‑1980 is without lawful authority and as such of no legal effect. ‑The writ petition is accepted but in the circumstances without any order as to costs since the petition has succeeded on a technical ground. A.A. Petition accepted.