1997 PLP 2623 (MLD)

C. Nazar Hussain for Petitioners. Ch. Hassan Muhammad for Respondents Nos. 3, 4 and

7. Date of hearing: 28th February, 1996. The facts which can be said to be reasonably ascertained are that the petitioners are the occupancy tenants of the pieces of agricultural land respectively in their possession while respondents Nos.2 to 29 are the owners. In 1953, it was decided to confer proprietary rights on the occupancy tenants and for this purpose section 114 was added in the Punjab Tenancy Act, 1887. Vide an order dated 9‑5‑1972 (Annexure‑B), Tehsildar Nankana found that the petitioners have deposited the requisite amount on 4‑5‑1972 and they were, therefore, entitled to the grant of proprietary rights in terms of para. l of the Notification No.69 (31), dated 5‑11‑1971. He, therefore, directed Girdawar, Mangtanwala Halqa to enter the mutations and to inform the owners. On 13‑5‑1972, Mutations Nos.81 to 87 were consequently sanctioned. Against these, some seven appeals were filed which were allowed on 27‑1‑1973 by Assistant Commissioner, Nankana exercising the powers of Collector. This officer was of the view that the petitioners could not acquire the proprietary rights unless they had approached the Revenue Court and obtained a decree in their favour. Against the order of Assistant Commissioner/Collector, the petitioners filed seven appeals before the Commissioner, Lahore Division, Lahore which were allowed by the Additional Commissioner Revenue on 20‑10‑1978. The learned Additional Commissioner relied on the provision of Ordinance 1 of 1972 namely Punjab Tenancy (Validation and Extension of Period for Payment of Compensation) (Amendment) Ordinance, 1972 to hold that if in any legal proceedings it was decided by any Court that any person has a right of occupancy such person may pay the compensation within six months of the decision of such proceedings or before 30‑7‑1972 whichever is later. The Additional Commissioner relied upon the order dated 16‑3‑1972 passed by Civil Judge, Nankana, Annexure‑A, by which the suit of Mst. Charagh Bibi, etc. against Akbar, etc. was dismissed as withdrawn. Taking 16‑3‑1972 as the commencing date and relying on the provision of Ordinance 1 of 1972, the Additional Commissioner held that the petitioners had made the payment within time and were, therefore, entitled to the proprietary rights. Respondents preferred seven revision petitions in the Board of Revenue which were allowed on 22‑7‑1980. The learned Member, Board of Revenue came to the conclusion that the case of the petitioners did not fall within the ambit of Ordinance 1 of 1972 and further that the proprietary rights did not accrue to the occupancy tenants automatically and that the tenants were obliged to bring up their cases before the Revenue Officers. Aggrieved, the tenants have filed this Constitutional petition to get rid of the order of Board of Revenue dated 22‑7‑1980.

2. It is evident that both the learned Additional Commissioner and Member, Board of Revenue have proceeded to decide the controversy in disregard of a very important piece of legislation namely Punjab (Validation of Extension of Period for Payment of Compensation) (Amendment) Act, IV of 1977. This Act, enforced on 14‑6‑1977, now a permanent piece of legislation amended section 3 of Ordinance XXXI of 1969 and laid down that the occupancy tenant could pay the amount of compensation on or before 31‑12‑1977. Amended Section 3 stands as follows:‑‑ "Extension of Period for Payment of Compensation. Notwithstanding anything contained in section 114 of the Punjab Tenancy Act, 1887 (Act XVI of 1877), and rules 3 and 4 of the Punjab Tenancy (Amendment) Rules, 1953', or any judgment, decree or order of any Court of other authority, it shall be lawful for any person who occupied land as occupancy tenant at the time of the coming into force of the Punjab Tenancy (Amendment) Act, 1952 (Punjab Act VII of 1952), but who failed to pay compensation to the landlord in accordance with the provisions of the said rules 3 and 4, to acquire proprietary rights in the whole or a portion, as the case may be of the land comprised in his tenancy, on payment of such compensation (or before thirty first day of December, 1977) (Provided that when in any legal proceeding it is decided by any Court that any person has a right of occupancy, such person may pay the compensation within six months 6f the decision of such proceeding or before the 30th July, 1972, whichever is later). It will be seen that the language of section 3 now is very effective and this has to operate notwithstanding the contrary provision mentioned therein or in judgment and decree. The right conferred by this provision is not conditional upon the existence of any judgment and decree.

3. Notwithstanding this language of the above provision, learned counsel appearing .for respondents‑owners has repeatedly insisted that an occupancy tenant can only get the proprietary rights after a decree from the Revenue Court. In his submission, the right conferred by the statute upon the occupancy tenants is conditional upon the existence of a decree of the Revenue Court. According to him, no officer in the revenue hierarchy can administer section 114 of the Punjab Tenancy Act, 1887 without the existence of a decree. In spite of repeated questions, learned counsel, however, was unable to cite any provision of law in support of his submission. He contented himself by reading from the impugned order which itself does not cite any provision of law in support of the above view. Be that as it may, I am not determining this question finally for the reason of the order which I proposed to pass.

4. Since the impugned order has been passed in complete ignorance of section 3 of the West Pakistan Ordinance XXXI of 1969 as amended by Punjab Act IV of 1977, I hold the same as having been passed without lawful Authority and of no legal effect. Resultantly, I would remit the revisions to respondent No. l (Member Board of Revenue) for reconsideration of the whole question keeping in view the abovenoted provision of law and after hearing the interested parties. It would be open to the parties to urge all legal points in favour of their respective points of view and nothing contained in this judgment will prejudice the determination of any such point. In the circumstances the parties are left to bear their oven costs. H.B.T./B‑5/L Order accordingly.