1995CLC788 (PLP)

(v) The learned counsel for the respondent in W.P. No. 206/83‑BVYT submitted that there is no defect in the description of the suit property. Only a block number was incorrectly written by inadvertence which was duly corrected by the learned trial Court: (vi) That the concurrent findings of Courts of competent jurisdiction cannot be interfered with in the Constitutional jurisdiction of this Court. Reliance was placed on 1982 SCMR 984. (vii) The learned counsel for the respondents in W.P. Nos. 7/84 and 8/84 submitted that the point of fractional share was not taken earlier on and it cannot be agitated for the first time in writ jurisdiction. Reliance was placed on PLD 1994 Peshawar 183, 1985 SCMR 112, NLR 1981 Revenue 81, PLD 1988 SC 287 and PLD 1990 SC 504. (viii) That being tenant of the suit land, they have preferential right of pre emption.

9. I have heard the learned counsel for the parties and have also gone through the precedent case law.

10. Much stress has been laid by the learned counsel for the petitioners on the question of lack of jurisdiction by the Assistant Commissioner who decided the suit for pre‑emption and also the jurisdiction of the Additional Commissioner, who heard the appeal. Sub‑para. (5) of para. 25 of MLR‑115 of 1972 provided that:‑ "All suits for enforcing the right of pre‑emption in respect of land comprised in a tenancy shall be exclusively entertained, heard and decided by the Collector." The word `Collector' has been defined in explanation to para. 25 of MLR‑115 which is as under:‑ "Explanation.‑‑‑In this paragraph `Collector' Commissioner' and `Board of Revenue' have the meaning assigned to them in the West Pakistan Land Revenue Act, 1967:'

11. By virtue of the powers vested in him by section 16 of the West Pakistan Land Revenue Act 1967, the Governor of Punjab vide Notification No. 11481‑69/5123‑E(F)VI, dated 15th November, 1969 conferred all the powers of Collector under the said Act, except the following:‑ (i) Appeals against the orders of Assistant Collectors 1st Grade in cases of partition; (ii) Correction in revenue records; (iii) Review of mutations; (iv) Suspension and remission of Land Revenue; and (v) Creation‑ of demand of Land Revenue, on the persons who on the date of this notification are holding or may hereinafter held the office of Assistant Commissioners and to direct that the said Assistant Commissioners shall exercise the said powers within the area of their respective jurisdiction." In view of the aforementioned notification, the Assistant Commissioner had the powers to decide the pre‑emption suits under para. 25 of MLR‑115 exercising the powers of Collector. The Assistant Commissioner who passed the impugned judgment/decree in the pre‑emption suit, therefore, was a `Collector' within the meaning of explanation to the aforementioned paragraph of MLR‑115.

12. Coming to the second limb of the arguments qua jurisdiction i.e. the orders passed by Additional Commissioner in appeal, it is to be noted that the post of the Commissioner was created in terms of section 8 of the West Pakistan Land Revenue Act which stipulates as under:‑‑ "For each Division there shall be a Commissioner and in each District there shall be Collector, who shall be appointed by Government, and who shall exercise throughout the Division or District, as the case may be, all the powers, and discharge all the duties, of the Commissioner or Collector, as the case may be, under this Act." 'Section 9 refers to the appointment of an Additional Commissioner and it reads as under:‑‑ "Government may appoint in any Division and Additional Commissioner who shall exercise throughout the Division all or any of the powers and discharge all or any of the duties conferred or imposed on a Commissioner by or under this Act subject to general provisions and the control of the Commissioner of the Division "

13. It is significant to note that in section 8 of West Pakistan Land Revenue Act while creating the post of a Commissioner it is said "there shall be Commissioner" whereas in section 9 ibid where the post of an Additional Commissioner is visualised the expression used is "Government may appoint in any Division an Additional Commissioner". This shows that the creation of the post of Commissioner in every Division is mandatory whereas it is discretionary in so far as the appointment of an Additional Commissioner is concerned. The Legislature in its wisdom made it optional for Government to appoint an Additional Commissioner in a division where the quantum of work and exigencies of administration so require but when an Additional Commissioner is appointed in a Division, he enjoys all or any of the powers conferred on a Commissioner. .

14. Under the West Pakistan Land Revenue Act, the appellate forum against the order of Collector under section 161 subsection (1) is the Commissioner and the word `Additional Commissioner' is not used in this section. however, the Additional Commissioner by virtue of the powers envisaged under section 9 of the Land Revenue Act also hears appeals and enjoys all the powers of the Commissioner of course "subject to the general supervision and control of the Commissioner of the Division". Similarly, if para. 25 of MLR‑115 makes Commissioner as the appellate forum and stipulates that" `Collector', `Commissioner' and `Board of Revenue' shall have the meaning assigned to them in the West Pakistan Land Revenue Act 1967", adopts the aforementioned nomenclature in all its connotations which have been spelt out in various sections of the West Pakistan Land Revenue Act. The view that in the scheme of ~law the powers of `Commissioner' are enjoyed by the Additional Commissioner as well is further strengthened by the definition of the word "Commissioner" in the General Clauses Act wherein the word "Commissioner" has been defined in subsection (13) of section 3 which reads as under:‑‑ I "`Commissioner' shall mean the chief officer‑in‑charge of the revenue -administration of a division (and shall include an Additional Commissioner of such division)"

15. It is one of the cardinal principles of interpretation of statutes that when any provision of another statute is adopted, the construction placed upon that provision under the former statute has to hold the field. Earl CRAWFORD in his book 'The Construction of Statutes while talking of adopt of statutes (at page 440) states as under:‑‑ "Furthermore, it is also a general rule that the adoption of a statute of another state or country, .will also carry with it the interpretation or construction placed upon such statute by the highest Courts of the jurisdiction from which the statute was adopted."

16. For a harmonious interpretation of a provision of law it is essential that every enactment should be regarded as a part of the whole body or system I of law. It, therefore, follows that in construing the statute or any provision which has been enacted by adoption or reference, the basic statute from where the said particular provision is being adopted or taken and other statutes specially the ones those are in pari materia with the adopted provision should be carefully examined in all its ramifications. Any other course would lead to' overlapping and may not advance the cause of legislative intent. 17. .The learned counsel for the petitioners while urging the point of jurisdiction has referred to a judgment of this Court reported in 1990 MLD 1912 (Imtiaz Gauhar v. The Additional Commissioner). In that case with utmost respect I would observe that some important aspects of the point in issue were not brought before the learned Court. These are:‑ (i) That the expression Commissioner used in para. 25 of MLR 115 is with reference to whole, of the Land Revenue Act and not confined to section 8 of the said Act. Section 9 conferred all powers of a Commissioner to Additional Commissioner and the Additional Commissioner was, therefore, fully competent to hear the appeal; (ii) That the definition of the word `Commissioner' given in the West Pakistan General Clauses Act reference to which has been made in para. 14 above was fully applicable as the said definition 'was not repugnant to the provision of the West Pakistan Land Revenue Act; and (iii) That in para. 14 of the afore‑referred judgmis t, the learned Judge has observed "the expression `Commissioner' not defined in Punjab Land Revenue Act, 1967": That being so, t e definition given in the West Pakistan General Clauses Act would h Id the field.

18. The question whether the Additional Commissioner can exercise the powers of a Commissioner came up for consideration before this Court and the definition of General Clauses Act afore-referred was considered to be relevant. This case is reported in 1990 ALD 659(2) and it was held:‑ 'The term `Commissioner' as defined by the General Clauses Act 1956 includes Additional Commissioner of the Division and as such the revision petition filed under Rule 21(5) was1competently disposed of by the Additional Commissioner (Revenue) 6ujranwala." The aforementioned case of course was a matter wherein the Additional Commissioner, decided the case exercising powers under the Punjab Agricultural Produce Markets (Rules, 1979) and the precise argument of the petitioner in that case was that the Commissioner under the rules was persona designata and only he could have heard the revision and not the Additional Commissioner. In another case which was a pre‑emption matter this Court upheld the pre‑emption decree passed by Additional Commissioner (Revenue) and this case is reported. in 1985 CLC 571.

19. There is yet another infirmity in the plea of lack of jurisdiction being agitated by the petitioners. They did not raise the question of jurisdiction before the Additional Commissioner. During arguments or in memo of revision before the learned Member Board of Revenue this issue was never raised. In that view of the matter, the petitioners cannot raise this ground in writ petition for the first time. In a case reported in 1974 SCMR 371, the Hon'ble Supreme. Court held:‑ "Jurisdiction.‑‑‑Party submitting to jurisdiction of tribunal and not raising any objection as to its jurisdiction‑‑‑Cannot be allowed to raise such objection in writ proceeding‑‑‑Constitution of Pakistan (1962), Art. 98." Similarly this view was affirmed in yet another judgment of the Hon'ble Supreme Court reported in 1969 SCMR 96(97) which is as follows:‑ "Jurisdiction‑‑‑Person acquiescing and participating in proceedings before a tribunal‑‑‑Cannot subsequently challenge order to be without jurisdiction because it went against him." Further, in a case reported in PLD 1964 SC 829 (Ghulam Mohiuddin v. Chief Settlement Commissioner etc.) the Hon'ble Supreme Court has held:‑ "Mere pendency of appeal or revision not necessary‑‑‑Such knowledge irrelevant‑‑‑Order of Settlement Authority in contravention of proviso a nullity‑‑‑Certiorari, however, will. not issue `as a matter of course' to quash such order‑‑‑Failure to have raised objection as to jurisdiction before Settlement Authority concerned at earliest opportunity disentitles party to relief by certiorari‑‑‑Such relief discretionary‑‑ Refusal of certain not based on any principle of waiver or acquiescence in jurisdiction on behalf of such party‑‑‑Laws (Continuance in Force) Order (I of 1958) Art. 2(4)." Elaborating the above‑referred dictum it was observed (at page 840) in the same judgment as follows:‑ "The principle upon which the writ is refused in such cases is not that jurisdiction has been conferred on the Tribunal concerned by waiver and acquiescence but that even though the impugned order is without jurisdiction the person seeking to have it quashed should not be granted that discretionary relief as he had stood by and allowed the Tribunal to usurp a jurisdiction which it did not possess knowing that the Tribunal concerned was committing such an illegality in consequence of something done by that person himself." It has also been observed in many a precedent case law that mere acquiescence or waiver would not invest a Tribunal a jurisdiction which in law it does not possess. However, such observations have been made in cases where the petitioner in the High Court was a respondent before the Tribunal lack of whose jurisdiction is pleaded before the High Court or the Hon'ble Supreme Court. For instance in a judgment reported in PLD 1967 SC 314 (315) (Muhammad Afzal v. Board of Revenue) it was observed that:‑‑ "Constitution of Pakistan (1962), Art. 98‑‑‑Jurisdiction, question of‑‑ Act alleged to have been performed by tribunal without lawful authority‑‑‑Mere fact that petitioner submitted to authority of tribunal in capacity of respondent‑‑‑Neither confers jurisdiction on tribunal nor deprives petitioner of his right to challenge order under Art. 98." This was a case in which the petitioner in High Court was respondent before the Board of Revenue and the order of the Board of Revenue was challenged in writ jurisdiction. The High Court refused to grant relief on the ground that the question of jurisdiction had not been raised before the Board of Revenue. The order of the High Court was challenged in appeal and the Hon'ble Supreme Court allowed the appeal and held that:‑ "The usual and the wise course that he takes is to submit for the time being and seek his redress through the more powerful agency of the Superior Courts."

20. In the present case, in all the three writ petitions, the petitioners were appellants before the Additional Commissioner and they never raised the question of jurisdiction before it. When their appeals were dismissed and they filed revisions before the Board of Revenue, even there they neither took the ground of lack of jurisdiction of Additional Commissioner in their memo of revision nor they argued the same before the learned Member Board of Revenue. They are, therefore, estopped to raise this point before this Court for the first time.

21. Coming to the merits of the case; the respondents‑defendants had a preferential right of pre‑emption; the learned Assistant Commissioner had rightly decreed the suit in their favour; there are concurrent findings of facts arrived at by forums of competent jurisdiction which do not call for interference. This finding of fact has not been seriously contested by the writ petitioners. Their main stress was on the question of jurisdiction.

22. The last point urged by the petitioners in W.P. No. 7/84 and W.P. No. 8/84 is that if suits of pre‑emption have to be decreed, it would only be to the extent of the fractional share to be calculated by the Revenue Authorities. I am afraid, the petitioners have no locus standi to urge this point for two reasons:‑ (i) They did not take this plea at any stage before they filed this petition; (ii) The respondents in W.Ps. Nos. 7/84 and 8/84 had filed pre‑emption suits as tenants. If a tenant is a vendee and knowingly purchases a share in the joint khata without specific numbers, then he can defend his suit to the extent of that share. However, if a land is purchased by somebody in the tenancy of another, that another, being tenant, can attack the sale to the extent of his tenancy.

23. The facts in the precedent case law to which reference has been made by the learned counsel on question of fractional share are distinguishable. For instance in 1985 SCMR 112(114) (Muhammad Ismail and others v. Member, Board of Revenue Punjab Lahore and others) it was held:‑ "We further note that respondents 5 to 7 were co‑sharers only in about 30 acres of land sought to be pre‑empted and at best the decree in their favour could be passed only to the extent of the land in their tenancy and not in respect of the remaining area which was in the cultivating possession of the other tenants, as envisaged in para. 25(3)(d) of the Land Reforms Regulation, 1972. Consequently, the decree for possession of the land which was not in' their occupation but was in the cultivating possession of the other tenants was against the law and the decree as passed is unsustainable."

24. In the present case, the respondents were tenants in possession and they‑ filed pre‑emption suits against sales of land which was in their possession. 25: The question of fractional share would not arise as they could successfully pre‑empt the land which was in their possession and which was subject‑matter of the impugned sale. In a judgment of the Peshawar High Court reported in PLD 1994 Peshawar 183(184) (Mst. Wazira v. Qadir Gull), it was held:‑ "In the aforesaid circumstances, the tenant was rightly given superior right of pre‑emption qua the Khasra number under his tenancy and hence the impugned judgment of the learned Additional District Judge does not require to be interfered with."

26. For what has been discussed above, I am of the view that Writ Petitions Nos. 206/83‑BWP, 7/84‑BWP and 8/84‑BWP have no merit and must fail. These are, therefore, dismissed. There shall, however, be no order as to costs. A.A./K‑171/L Petitions dismissed.