P L D 1964 (W (PLP)

A. S. FAROOQI, J.‑-This petition under Article 98 of the Constitution is by two person Muhammad Salim and Muhammad Amin sons of Ghulam Haider of Sikandarabad Tehsil & District Rahimyarkhan. The respondent No. 1 is the Land Commissioner, Bahawalpur Division and the respondent No. 2 is the Chief Land Commissioner, West Pakistan, Lahore. Respondents 3 to 5 are the persons in whose favour the impugned orders of the respondents 1 and 2 have been passed. Respondent No. 6 was the landlord of the land in dispute.

2. The land which is the subject matter of the present dispute between the parties was ordered by the Assistant Land Commissioner to be transferred to the petitioners on or about 28th July 1960 under the scheme of sale framed under the Martial Law Regulation No.

64. This was done for the purpose of upgrading their holdings. The respondents 3 to 5 being aggrieved by this order preferred an appeal to the Deputy Land Commissioner on 22‑10‑60 who dismissed it by his order dated 4‑1‑61 upon the sole ground that the appeal was barred by time. The aforesaid respondents preferred a revision to the Land Com missioner, Bahawalpur Division by their petition dated 10‑1‑

61. The Land Commissioner found that the area in dispute had been given to the respondents (the present petitioners) for the purpose of upgrading their holdings; that the area was in fact in possession of neither parties but was shown as `Maqbuza Malikan' in the `Khasra Girdawari'. He further observed that there may be a slight defect in the observance of the procedure but there was no ground to upset the arrangements already made as no glaring in justice seemed to have resulted thereby. He accordingly dismissed this revision petition by his order dated 21‑3‑

61. An application for review was then made on 10‑11‑61, but by this time the Land Commissioner who had passed the order dated 21‑3‑61 had been succeeded by another incumbent. The latter, as required by the rule, obtained the permission of the Chief Land Commissioner for reviewing the order of his predecessor and then after hearing the parties passed his order on 23‑7‑

62. He held that although the respondents were not actual tenants the order for transfer was made in their favour and that this was in contravention of the provisions of the said Scheme. He further held that since it was established by the perusal of the record that the petitioners (the respondents before us) were tenants in cultivating possession during Kharif 1958/Rabi 1959, it was only appropriate that they should be given first priority in the sale of the land in question under the upgrading scheme. He accordingly reviewed the order of his predecessor.

3. The present petitioners along with three others who are not now before us filed 5 separate appeals against the order passed on review to the Chief Land Commissioner, Lahore. This appeal was filed under rule 10 of the West Pakistan Land Reform Rules, 1959. The learned Chief Land Commissioner observed that the appeals were not competent but he, however, treated them as revisions and after a full hearing rejected all the five of them. As to the objection with regard to the review petition being time‑barred he observed that in so far as the Land Commissioner had sought permission to review his predecessor's order and this permission had been granted to him he had exercised his suo motu powers of review and for which there was no limitation. He further noted the finding of the Land Commissioner that the petitioners were not in cultivating possession of the area in dispute and they had been given the land with the assistance of the local Patwari who had tampered with the record for including their names. He further observed that although the Khasra Girdawari was not before him because it was with the Land Commissioner in connection with the inquiry which was being held against the Patwari in respect of the tampering, he had seen the Khatoni for Kharif 1958 and Rabi 1959 and therein the petitioners' name did not find any mention. Upon these findings he dismissed all the five revisions as stated above. These included the two revisions of the present two petitioners before us.

4. This petition was admitted for the consideration of the contention of the petitioners that the powers of review could be exercised by the Land Commissioner within 10 days whether upon an application of a party or suo motu.

5. We have heard Mian Fazal Karim Chishty, the learned Advocate for the petitioners, and Mr. Amir Raza Khan for the respondents 1 and

2. Amongst the respondents 3 to 5 one of them was present in person and he held the power‑of‑attorney for the rest of them. Mr. Chishty attempted to contend that the finding of the learned Land Commissioner which was upheld by the Chief Land Commissioner as regards the petitioners being not cultivating tenants was factually erroneous. He also attempted to contend that the finding of the Land Commissioner that the petitioners ‑were students and were not actual cultivators was also an incorrect finding of fact. We, however, do not think that having regard to the nature of the case and the limits of our jurisdiction under Article 98 of the Constitution we should go into disputed questions of fact. We will therefore proceed to examine the alleged illegality of the two orders, namely that of the Land Commissioner passed on review and the subsequent order of the Chief Land Commissioner upholding that order. The main argument on this part of the case was upon the question of limitation and this was with reference to rule 11 of the West Pakistan Land Reform Rules, 1959. This rule reads as follows

11. Review:‑(I) The Chief Land Commissioner, a Land Commissioner, or a Deputy Land Commissioner may of his own motion or on an application of any party interested made to him in that behalf, within ten days from the date of the order, review, and on so reviewing modify, reverse or confirm, any order passed by himself or by any of his predecessors‑in‑office : Provided that (a) (i) a Land Commissioner shall not review an order passed by his predecessor‑in‑office without first obtaining the sanction of the Chief Land Commissioner; (ii) a Deputy Land Commissioner shall not review any order whether passed by himself or by any of his predecessors‑in- office without first obtaining the sanction of the Land Commis sioner of the area concerned ; (b) an order shall not be modified or reversed unless a reasonable notice has been given to the parties affected thereby to appear and be heard; and (c) an order against which an appeal or a petition for revision has been preferred shall not be reviewed. (2) An appeal shall not lie from an order refusing to review or confirming on review a previous order. (3) Clerical or arithmetical mistakes in any order passed by an officer in pursuance of the provisions of the Regulation and these Rules may, at any time, be corrected by such officer or his successor‑in‑office as soon as any such error has come to or been brought to his notice."

6. The contention of the learned counsel for the petitioners was firstly that the period of limitation of 10 days provided in this rule applied both to a review suo motu and also upon an application by the party aggrieved. Secondly, it was contended that even if it was found that there was no limitation for a review suo motu even then this was not a case of suo motu review but a review upon an application by the party aggrieved and, therefore, the limitation of 10 days was clearly applicable and the Land Commissioner acted with illegality in exercising his powers of review upon an application which was hopelessly time‑barred. It was urged that in view of the comma placed after the word `behalf' in rule 11 and the second comma placed after the word `order' it was intended that the period of 10 days' limitation was to govern the power of review by the Land Commissioner both in the case of an application by the party interested as also when he acted upon his own motion. The argument would appear to be plausible and indeed in a judgment of the Division Bench the Karachi seat of the West Pakistan High Court in case of Haji Khair Mohammad Khan v. State (P L D 1963 Kar. 757), it was held that the punctuation in rule 11 was defective but it was observed that punctuation was not an essential part of the statute, and by reading a comma after the words "of his own motion" and having regard to the purposes of the Act it was held that the power of review suo motu without limit of time was consistent with reason.

7. We have approached the matter from another angle. We are inclined to the view that the words "may of his own motion" are to be read disjunctively from the words "on an application of any party interested made to him fn that behalf, within 10 days from the date of the order". These two pieces are joined by the word `or'. If these two pieces are read disjunctively then it will follow that the words "within 10 days" relate to the making of the application by any party interested. This construction is supported by the fact that the review itself could not have been intended to have been done within 10 days. But that would be the result if we were to accept the interpretation suggested by the learned Advocate for the petitioners. If we do not read the two pieces mentioned above disjunctively the Land Commissioner, if he acted upon his own motion would have to review his order or the order of his predecessor within 10 days from the date of the order which was sought to be reviewed. This would lead to obvious absurdities. For instance, an order cannot be reviewed by the same Commissioner who passed the order without giving reasonable notice to the parties affected, to appear and be heard. Then in the case of a review of an order by his predecessor he would first have to obtain sanction of his superior. Neither of these two things might be possible within the period of 10 days. That being so, the power of review suo motu would become illusory. This clearly could not have been the intention of the framers of the rules. In fact, the Chief Land Commissioner, who was the member of the Land Commission and who framed the rule, has circulated his interpretation, that no limitation was intended for a review sou motu, to all the Land Commissioners and Deputy Land Commis sioners in West Pakistan. We are, therefore, of the opinion that the period of 10 days' limitation as provided by rule 11 applies to C the making of application by interested party and not when the Commissioner (this would include the Chief Land Commissioner, Land Commissioner and the Deputy Land commissioner who are all mentioned in rule 11) acts upon its own motion. We agree that the drafting of this rule is bad and clear words such as are used in rule 12 should have been used to avoid the difficulty of interpretation as has arisen in this case because of the manner in which rule 11 has been framed.

8. With regard to the second contention it is no doubt true that the Land Commissioner acted upon an application made by the present respondents 3 to

5. This application was admittedly barred by time. The question then is whether we should declare this order to be illegal in exercise of our powers under Article 98 (2) (a) (ii) to be without lawful authority and of no legal effect. It must be remembered that the Land Commissioner could not have been oblivious of the fact that the application was barred by limitation and he also must have known of his power of suo motu review. The fact that he still decided to apply for the permission of the Chief Land Commissioner to review the order of his predecessor would indicate that he was, in all probability, making use of his suo motu powers. But even if this is not so, the fact remains that when the petitioners themselves took the matter to the Chief Land Commissioner he upheld the view of the Land Commissioner. The Chief Land Commissioner has got power under rule 12 to call for the record of any case or proceedings at any time and pass such orders in relation thereto as he thinks fit. We have in the earlier part of this order referred to the finding of the Chief Land Commissioner who had endorsed the finding of the Land Commissioner. We have also noted the fact that it was found that the petitioners had obtained the transfer of the land with the assistance of the local Patwari who had tampered with the record. This finding may or may not be correct but we would not, in the exercise of our special) jurisdiction, embark upon an investigation of that matter. The jurisdiction to grant a declaration under Article 98 is discretionary and having regard to all the circumstances referred to above we are clearly of the opinion that this is not a fit case in which we should interfere in exercise of our powers under Article 98 of the Constitution. We accordingly dismiss this petition but leave the parties to bear their own costs. S. Q. Petition dismissed.