1988 PLP 74 (SCMR)

SAAD SAOOD JAN, J.--In these petitions for special leave to appeal the High Court has in constitutional jurisdiction set aside the orders of the Board of Revenue and restored those of the Additional Commissioner, Sargodha, whereby the decrees of ejectment obtained by the petitioners against their tenants were set aside and the suits remanded to the Collector for fresh decision on the ground that on the day the decrees were passed the Court concerned was not seized of the proceedings.

2. The petitioners owned land which was being cultivated by the tenants. On 1-6-1986 they brought suits for the ejectment of the tenants on the ground of default in the payment of Batai in the Court of the Assistant Collector, 1st Grade, Kaloor Kot, District Bhakkar. Under rule 4(4), Punjab Land Reforms (Procedure for Ejectment Suits) Rules, the Assistant Collector was required to dispose of the suits within 60 days of the receipt of the plaint. Under rule 4(5) the suits were to stand automatically transferred to the Court of Collector in the event the Assistant Collector failed to decide them within the said period. The Assistant Collector did not decide the suits within 60 days; however, despite an objection taken by the tenants, he passed decrees for their ejectment on 2-8-1986. The tenants preferred appeals before the Collector but without any success. They then filed revision petitions before the Additional Commissioner. Relying upon the provisions of rule 4(5), ibid, the Additional Commissioner accepted the revision petitions, set aside the decrees of ejectment and remanded the suits to the Collector for fresh decision in accordance with law. The petitioners challenged the decision of the Additional Commissioner in revision before the Board of Revenue. By a common order the Board of Revenue set aside the orders of remand and restored the decrees of ejectment on the authority of a judgment of the Lahore High Court reported as Alif Din v. Additional Commissioner, Sargodha 1983 C L C 2051. The tenants questioned the legality of the order of the Board of Revenue in constitutional jurisdiction in the High Court. The learned Single Judge in the High Court declared the said order to be without lawful authority and legal effect.

3. The decision of the High Court in Alif Din's case upon which the Board of Revenue has relied follows the decision of this Court in Muhammad Hafeez v. Jalal Din 1981 S C M R 1171 without containing any reason of its own. A perusal of the judgment in Muhammad Hafeez v . Jalal Din would show that- the proposition whether an Assistant Collector would still retain seisin of the case if he failed to decide it within the specified period of 60 days was not at all considered. The High Court was, therefore, not right in citing it in support of its decision. On the other hand, this proposition was considered by this Court in Muhammad Rafi v. Additional Commissioner 1981 S C M R 1181 and the view taken was that the decision recorded after the expiry of 60 days by the Assistant Collector in an ejectment suit was without jurisdiction. The High Court, therefore, was right in accepting the constitutional petitions of the tenants declaring the order of the Board of Revenue to be without legal effect.

4. The learned counsel for the petitioners then contended that sub-rules (4) and (5) of rule 4, ibid, were ultra vires of the powers of the Land Commission. It is to be noticed that that sub-rules in question have been made by the Land Commission in exercise of its B powers under paragraph 6 of Martial Law Regulation No.

115. Learned counsel was unable to refer to any provision in the parent statute or any other law which would militate against the framing of rules of the nature of sub-rules (4) and (5) or show that the said such sub-rules were beyond its competence.

5. For the reasons stated above we find no merit in these petitions which are hereby dismissed. M.I. /A-116/S????????????????????????????????????????????????? ??????????????????????????????????? Petitions dismissed.