P L D 1963 W (PLP)

‑First appointment‑Status of parties at time of order of Collector to be taken into consideration Subsequent improvement to be ignored. Kh. Abdur Rahim for Petitioner. Mian Muhammad Shafi for Respondent. The preliminary objection taken by the learned counsel for the respondent is that section 7 of the West Pakistan Board of Revenue Act of 1957, became applicable on 22nd May 1959, when the rules framed under section 9 of the Act, came into force. On the strength of this plea it was contended that no revision could be preferred to the Full Board before the enforcement of the Board of Revenue Rules and that for this reason the petition which was filed on 11‑12‑1956 is not competent. Reliance has been placed upon a ruling of the Privy Council In re Delhi Cloth and General Mills Co. Ltd. v. Income tax Commissioner, Delhi and another (A I R 1927 Lah. 181). We have carefully gone through this ruling, the brief facts of which are that there were three petitions for special leave to appeal from order made by the High Court of Judicature at Lahore on reference under section 66 (2) of the Indian Income‑tax Act, 1922. In each case the High Court had refused to certify that the case was a fit one for appeal to His Majesty‑in‑Council. In the three cases the order of the High Court was passed in January, 1926 i.e. before the 1st April, 1926 when the Indian Income‑tax (Amendment) Act, 1926, came into force and the effect of the judgment in the case was to lay it down that there was in fact, no statutory right of appeal from these orders, at all. Their Lordships of the Privy Council carefully considered the ques tion and ultimately advised His Majesty to dismiss the petitions. This ruling is obviously not applicable to the facts of this case as it deals with the principle that provisions touching existing rights are not ordinarily retrospective. Kh. Abdur Rahim, the learned counsel for the petitioner opposed the propo sition advanced by Mian Muhammad Shafi counsel for the respondent and argued that the rules take effect from the enforce ment of the Act which in other words means that the rules have retrospective effect. He has taken us through the relevant portion dealing with "Statutory Instructions" in the well known book of Maxwell on the Interpretation of Statutes." This too provides no unequivocal solution to the problem. Since no suitable authority has been produced from either side, we will, therefore, depend upon a plain interpretation of section 7 of the Act. The West Pakistan Board of Revenue Act of 1957 came into force on 28th February 1957, subsection (1) of section 7 lays down that any order made or decree passed by a Member either on appeal or revision, shall subject to any order made or decree passed under provisions of subsection (2) or (3) of this section or section 8, be final. Subsection (2) gives a right of revision to a person aggrieved by an order made or decree passed by a Member in such cases as are specified in the rules framed in 1959 and also ordains that no revision shall lie to the Full Board when an order made or decree passed by a Member is on the revisional side. Subsection (3) says that every application under subsection (2) shall be made within 90 days from the date of the order made or decree passed. The textual construction of this section is that considering himself aggrieved by an order made (sic) revision to the Full Board within a period of 90 days and that there shall be f no revision when an order is made or a decree passed by a single Member in exercise of his revisional jurisdiction. What revisions are competent was to be determined by the rules which were framed by Government in 1959. The Legislature gave a certain right to aggrieved persons and this could not be defeated, procrastinated or subordinated to rules which are only to implement the substantive law. If the preposition of Mian Muhammad Shafi were accepted it would mean that section 7 of the Act remained dead and dormant from the 20th February 1957 to 21st May 1959 and came into operation only on 22‑5‑1959 when the Rules came into force. This cannot at all be the intention of the Legislature. We would, therefore, hold that the rules under section 9 of the Act, dated 22‑5‑1959 will take effect from the date of enforcement of the Act i.e., 26‑2‑1957 and as such the petition is competent.

2. As to merits of the case the respondent had only 2 acres of land at the time of his appointment and this cannot be a security for the Government demand of Rs. 6,

000. He made improvements in his status by purchasing 2 acres of land in March 1954 i.e., after the Collector's order. He sold away this land in 1958. Obviously the appointment of the respondent made by the Collector was unreasonable and was rightly set aside. In our opinion the learned single Member should not have given weight to his additional purchase subsequently disposed of. This is a case of first appointment and as such the status of parties obtaining at the time of Collector's order should have been the criterion and not the improvements made later on. If improvements made after the Collector's order are taken into consideration than a Lambardari case would hardly have a finality. So far as the strength and importance of the community is con cerned, both the Commissioner and the learned Member relied upon different dates. According to the report we called for from the Collector it appears that there were 114 Jats with 323 acres of land as against 164 Arains with 272 acres of land. Obviously both the communities are equally important. Even if weight is given to the number of Arain families which is 164 as against 114 Jats, the respondent cannot secure much advantage as the majority comnunity has not been able to produce any one having property, sufficient to meet the Government demand.

3. In the circumstances mentioned above the petition of Allah Ditta is accepted and order of the learned Single Member making appointment of Salamatali is set aside. K. M. A. Petition accepted.