P L D 1983 Peshawar 1 (PLP)

ABDUL KHALIQ KHAN, J.--‑Through Constitutional writ petition, tile petitioners have called in question the order of the Board of Revenue dated 11‑12‑1976, setting aside the judgment of the Additional Commissioner, Peshawar Division, Peshawar (passed in exercise of the revisional powers of the Commissioner) dated 12‑8‑1976, on the ground that the said judgment (order) is without jurisdiction and lacks lawful authority. It has been, therefore, prayed that the said order be quashed and the order dated 12‑8‑1976 that of the Additional Commissioner revived.

2. The facts relevant to the disposal of the petition are that respondents 3 to 17 are land‑tenants under petitioners, on payment of fixed lease amount. The said landlords initiated proceedings on 11.7‑1974 against the lessees for ejectment and recovery of lease money, for Rabi and Kharif. 1972 (Suit No. 271/1 of 1974) in the Court of Assistant Collector 1st Grade, Mardan. The claim for ejectment was hotly contested by the lessees. Issues arising out of the pleadings were framed and evidence for and against recorded. After hearing the learned counsel for the parties, vide order dated 12‑10‑1974, the case was partly decreed. The petitioners were granted decree for specified lease amount but the claim regarding ejectment was dismissed.

3. The landlords preferred appeal in the Court of Collector, Mardan with regard to their prayer for ejectment, on 23‑10‑1974. The said appeal was, however, dismissed on 28‑4‑1975. Thereafter, they filed on 4‑8‑1975 revision petition in the Court of Additional Commissioner, Peshawar, exercising the powers of Commissioner, which was accepted on 12‑8‑1976 and the lessees were ordered to be ejected from the disputed land. The lessees not being satisfied with the order of the Additional Commissioner, Peshawar, moved second revision in the Board of Revenue, N: W. F. P. which was disposed of by Member, through order dated 11‑12‑1976. He set aside the order of the Additional Commissioner referred to above, and restored that of the original Court.

4. The petitioner‑landlords, thereafter, moved this Court, by filing the present writ petition, in. exercise of its Constitutional jurisdiction impuging the aforementioned order of the Board of Revenue and with a prayer for restoration that of the Additional Commissioner; on the legal ground, that the Commissioner had concurrent powers of revision, under the N.‑W. F. P. Tenancy Act, 1950, with the Board of Revenue (henceforth the Board), therefore, the latter had no authority to set aside in second revision, the order passed by the Additional Commissioner, in exercise of his powers of revision.

5. Identical question being involved is writ petitions detailed below we, therefore, propose to dispose them of by this judgment :‑ "(1) W. P. No. 553/77 (Abdul Ahad Khan v. Member, Board of Revenue, etc.) (2) W. P. No. 616/77, (H. Zildar v. Member, Board of Revenue etc.) (3) W. P. No. 103/80 (Habib Muhammad. Khan v. Member, Board of Revenue, etc.) (4) W. P. No. 140/80 (Habib. Muhammad Khan v. Member, Board of Revenue, etc.) . . (5) W. P. No. 213/80 (Said Akbar v. Member, Board of Revenue). (6) W. P. No: 214/80 (Said Akbar v. Member, Board of Revenue). (7) W. P. No. 197/81 (Khalid Khan v. Member, Board of Revenue, etc.) (8) W. P. No. 299/81. (Jumma Gul v. Member, Board of Revenue, etc.) (9.) W. P. No. 300/81 (Inamud Din v. Member, Board of Revenue, etc. (10) W. P. No. 301/81 (Gul Karam v. Member, Board of Revenue, etc.) (11) W.' P. No. 302/81 (Sultan v. Member, Board of Revenue etc.) (12) W. P. No. 303/81 (Azim Shah v. Member, Board of Revenue, etc.) (13) W. P. No. 304/81 (Dawa Jan v. Member, Board of Revenue, etc.) (14) W. P. No. 305/81 (Rehmatullah v. Member, Board of Revenue, etc.) (15) W. P. No. 306/81 (Lal Karam v. Member, Board of Revenue, etc.) (16) W. P. No. 310/81 (Gul Muhammad v. Member, Board of Revenue etc.)"

6. It is the case of the petitioners that section 56 of the N: W. F. P. Tenancy Act, 1950, envisages only one revision and that Commissioner's powers of revision being co‑extensive with the Board, hence, the Commis sioner having exercised the said (revisional) powers, the same were not available to the Board of Revenue, to revise the order that of the said Commissioner, therefore, the order passed by the said Board in exercise of its revisional jurisdiction, setting aside the order of the Commissioner is not tenable in law. On the other hand, it was urged with no less vehemence, that the Commissioner being subordinate to the Board, therefore, his order was exceptionable in further revision. In support were cited Ghulam Akbar v. Mosam Khan and others (P L D 1961 Rev. 96), Mst. Maryam Sultana v. Noor Muhammad (P L D 1963 Rev. 48) and Sakhiullah etc. v. Haji Zilladar (P L D 1978 Rev. 20). The said authorities it may be noted, are either directly based on section 84 of the Punjab Tenancy Act or inspired by.

7. In order to appreciate the contentions of the opposing parties, it may be necessary to reproduce section 56 of the N: W. F. P. Tenancy Act and corresponding section 84 that of the Punjab Tenancy Act. Section 56 of the N.‑W. F. P. Tenancy Act reads :‑ "(1) The Board of Revenue or the Commissioner may at any time call for the record of any case pending before, or disposed of by, any Revenue Officer or Revenue Court subordinate to it or him. (2) A Collector may call for the record of any case pending before, or disposed of by, any Revenue Officer or Revenue Court under his control. (3) If in any case in which a Collector has called for a record he is of opinion that the proceedings taken or the order or decree made should be modified or reversed, he shall submit the record with the opinion on the case for the orders of the Commissioners. (4) `If, after examining a record called for by himself under subsection (1) or submitted to him under subsection (3), the Commissioner is of opinion that it is inexpedient to interfere with the proceedings or the order of decree, he shall pass an order accordingly. (5) If, after examining the record, the Board of Revenue or the Commis sioner is of the opinion that it is expedient to interfere with the proceedings or the order or decree on any ground, on which the High Court in the exercise of its revisional jurisdiction may, under the law for the time being in force, interfere with proceedings or an order or decree of a civil Court, he shall fix a day for hearing the case, and may, on that or any subsequent day to which he may adjourn the hearing or which he may appoint in this behalf, pass such order as he thinks fit in the case. (6) Except when the Board of Revenue or the Commissioner fixes under subsection (5), a day for hearing the case, no party has any right to be heard before the Board of Revenue or the Commissioner when exercising its or his powers under this section." Corresponding section 84 of the Punjab Tenancy Act is as follows :‑ (1) The Board of Revenue may at any time call for the record of any case pending before, or disposes of by any Revenue Officer or Revenue Court subordinate to him. (2) A Commissioner or Collector may call for the record of any case pending before, or disposed of by, any Revenue Officer or Revenue Court under his control. (3) if any case in which a_ Commissioner or Collector has called for a record he is of opinion that the proceedings taken or the order of decree made should be modified or reversed, he shall submit the record with his opinion on the case for the orders of the Board of Revenue."

8. On comparison, the two sections of the N: W. F. P. Tenancy Act and the Punjab Tenancy Act, it is manifest that the powers with which the Commissioners have been invested under the Tenancy Act of the two Province, substantially differ, inasmuch as, where the former the Commis sioner has been bracketed with the Board in exercise of revisional powers (subsection (1) of section 56), but his name is conspicuous by its absence in subsection (1) of section 84 that of the latter Act. To be more specific where under subsection (1) of section 84 of the Punjab Tenancy Act, the Board alone has been invested with the authority to call for the record of any case pending before or disposed of by any Revenue Officer, or Revenue Court subordinate to it, under the N.‑W. F. P. Tenancy Act, the Commissioner too can exercise the same powers. Under subsection (4) of the N: W. F. P. Tenancy Act, the Commissioner alone has been clothed with the authority to examine record called for by himself under subsection (1) or submitted to him under subsection (3) while the Board of Revenue and the Commissioner have been authorised to do so under the Punjab Tenancy Act.

9. Subsection (5) of the N: W. F. P. Tenancy Act, provides that "The Board of Revenue or the Commissioner can interfere on the grounds on which the High Court, in exercise of its revisional jurisdiction, may interfere with proceedings or any order or decree of a civil Court, while under the Punjab Act the Board of Revenue alone has been authorised to exercise the said revisional powers referred to above.

10. It may be proper in the circumstances, to refer to the relevant provision of revision under the Civil Procedure Code. Section 115, Civil Procedure Code provides for revisional powers of the High Court, in cases decided by subordinate Courts. It reads :‑‑ "(1) The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears ; (a) to have exercised a jurisdiction nor vested in it by law, or (b) to have failed to exercise a jurisdiction so vested, or (c) to have acted in the exercise of its jurisdiction illegally or with material irregularity," the High Court may make such order in the case as it thinks fit. Provided that, where a person makes an application under this subsection, he shall, in support of such application; furnish copies of the pleadings, documents and order of the subordinate Court and the High Court shall, except for reasons to be recorded, dispose of such application without calling for the record of the subordinate Court. (2) The District Court may exercise the powers conferred on the High Court by subsection (1) in respect of any case decided by a Court subordinate to such District Court in which no appeal lies and the amount or value of the subject‑matter whereof does not exceed the limits of the appellate jurisdiction of the District Court. (3) If any application under subsection (1) in respect of a case within the competence of the District Court has been made either to the High Court or the District Court, no further such application shall be made to either of them. (4) No proceedings in revision shall be entertained by the High Court against an order made under subsection (2) by the District Court.

11. Evidently section 115 of the Civil Procedure Code 'applies to cases involving illegal assumption, non‑exercise or irregular exercise of jurisdiction and as sub‑clauses (2), (3) and (4) would show, the District Judge and High Court have co‑extensive powers of revision subject, no doubt, to the pecuniary jurisdiction of the former. It is further clear that the provisions of section 115, C. P. C. are in two parts. The first part enumerates the conditions under which the supervising Court can interfere and .the second part specified the types of the orders that are susceptible to revision. A. The High Court/District Judge can interfere in revision if the following conditions are fulfilled: (1) There should be a case decided. (2) The decision should be of a Court subordinate to the High Court/ District Judge. (3) No appeal should lie to the High Court/District Judge from such decision. B. Where the above conditions are fulfilled, the High Court(District Judge may interfere where the subordinate Court has‑‑ (1) exercised a jurisdiction not vested in it, or (2) failed to exercise a jurisdiction vested in it, or (3) acted in the exercise of its jurisdiction illegally or .with material irregularity."

12. Section 115, C. P. C. thus pin‑points the grounds on which an order of the lower Court can be revised. It is also of material help to determine if two authorities can be invested with identical powers of revision.

13. It is apparent from bare reading of the relevant section of law, that the Legislature can invest two authorities, one even superior to the other, to exercise revisional powers, where the impugned order has been passed without or in excess of jurisdiction or in exercise of its jurisdiction) illegally or with material irregularity.

14. It was next contended by the learned counsel for the respondents that as under section 50 of the N: W. F. P. Tenancy Act, the Board possess Power of general superintendence and control over all other Revenue Officers and Revenue Courts and as the Commissioner acts as Court (section 52), therefore, the Commissioner being subordinate to Board, could not be persumed to have co‑extensive powers of refusion with it.

15. Frankly speaking, the contention would not appeal, for the simple reason that it is for the Legislature to make law and the Courts are only to interpret it in its ordinary meanings. The argument that the Commissioner being subordinate to the Board, it could not therefore be the intention of the Legislature to saddle him with the same powers as the Board, is negated by section 115, C. P. C. wherein the High Court as well as the District Judge has been invested with concurrent revisional powers, subject no doubt, to pecuniary jurisdiction.

16. Coming back to consideration of section 56 of the N.‑W. F. P. Tenancy Act, 1950, contrary to contemporaneous section 84 of the Punjab Tenancy Act, has invested the Commissioner with identical powers of revision with the Board. The authorities cited above are either directly based on section 84 of the Punjab Tenancy Act or primarily finds support for conclusion, on the authorities under the said section. It would not, therefore, cover the legal position under section 56 of the N.‑W. F. P. Tenancy Act, which as discussed above has its distinct features.

17. It was next contended that the petitioners having participated in the proceedings in the Board of Revenue, therefore; they were legally barred to question the validity of the said proceedings.

18. We, however, find no force in the argument. By mere submission, in the capacity of respondents to the authority of the Board, the petitioners cannot be thought to have conferred jurisdiction on the Board which it did not possess or to have waived their right to challenge its power to interfere with the order of the Commissioner. Reference in this connection can be made to Muhammad Afzal v. Board of Revenue and others (PLD 1967 SC 314).

19. The sum and substance of the discussion above would be that th e Board of Revenue ‑ and the Commissioner have concurrent revisional jurisdiction under section 56 of the N: W. F. P. Tenancy Act of 1950 and the Commissioner having exercised the said revisional powers, the Board of o Revenue could not entertain 'second' revision against his said order. I may however be made clear that the Commissioner would exercise revisional powers in a case in which the appeal does riot lie to him. Once the Commissioner exercises the revisional jurisdiction under section 56, the Board of Revenue to our interpertion of section 56 would not be competent to exercise the same powers with respect to the same case. I may, however, be added that the Board of Reuenue would be competent to exercise revisional powers to cases decided by the Commissioner in appeal.

20. Consequently we would ac"‑pt the writ petitions set aside the orders of the Board of Revenue and restore that of the Additional Commissioner. Keeping however in view the legal points involved, we would not make any order as to costs. S. A. H Petition accepted.