P L D 1990 Supreme Court 469 (PLP)

S.71(3) & (4)--Constitution of Pakistan (1973), Art.199-..Jurisdiction of Commissioner --Commissioner was not justified to set aside order passed by Collector in appellate jurisdiction as he, could convert appeal into revision --Held, it was within the jurisdiction and competence of the Board of Revenue to correct the error Where the Board of Revenue failed to correct the error, High Court, under its Constitutional jurisdiction could do the needful in this behalf. (j) Balochistan Tenancy Ordinance (XXIV of 1978)

S.71(3) & (4)--Board of Revenue has jurisdiction, power and competence to assume that order passed by Commissioner was opinion under S.71(3) and accept or reject the opinion of Commissioner under S.71(4) after observing the other formalities and procedures in accordance with law. Azizullah Memon, Advocate Supreme Court and S.A.M. Quadri, Advocate-on-Record for Appellants. Respondents Nos. I to 3: Ex parte. Basharatullah, Advocate Supreme Court and Raja M. Afsar, Advocate -on-Record for Respondents Nos.4 to 10. Date of hearing: 25th September, 1989. MUHAMMAD AFZAL ZULLAH, J.--This appeal through leave of the Court is directed; against the dismissal by the High Court, of a Constitutional petition which had arisen out of land ejectment case commenced under the Balochistan Tenancy Ordinance No. XXIV of 1978. The appellants/tenants were directed to be ejected. Their appeal was dismissed. They filed a second appeal before the Additional Commissioner as a result whereof. the case was remanded for fresh decision on merits. The respondents' revision was accepted by a learned Member, Board of Revenue. The second appellate order of the Additional Commissioner was set aside as without jurisdiction and the order of the Collector directing the appellants' ejectment was restored. They filed a Constitutional petition in the High Court and the same having been dismissed they sought leave to appeal which was granted by this Court after noticing the facts and circumstances as also the points involved as follows:-- "The respondents Nos.4 to 10 filed a suit on 6th June, 1981, against the appellants in the Court of Assistant Commissioner/Assistant Collector, Sub-Division Dhadar, under the provisions of the Ordinance, for ejectment of the appellants from the land in dispute situated in Mouza Sibri, Tehsil Dhadar, District Kachhi. According to the appellants six of the appellants were not duly served with the summons of the suit, whereas four of the appellants were served and filed a written statement repudiating the claim of the aforesaid respondents and challenging the maintainability of the suit. By order dated 26th January, 1984, the learned Assistant Commissioner, ex parte decreed the suit of the said respondents. The appellants being aggrieved, challenged the decree passed against them in an appeal before the Deputy Commissioner/Collector, District Kachhi, who vide order dated 10th June, 1984, dismissed the appeal as being barred by time. The appellants filed a further appeal in the Court of Commissioner, Sibi Division, which was accepted vide order dated 7th April, 1985, and the orders passed by the subordinate officers were set aside and the suit was remanded to the first Court for fresh trial and decision in accordance with law. Respondents 4 to 10 then preferred a revision in the Court of Member, Board of Revenue, Baluchistan, respondent No.1 herein, which was allowed by order dated 16th March, 1986, on the ground that the second appeal before the learned Commissioner filed by the petitioners was not competent in law. Appellants then challenged the aforesaid order dated 16th March, 1986, in a Constitutional petition which was dismissed by a Division Bench of the Balochistan High Court vide judgment dated 27th July, 1986. Hence this petition for leave to appeal." The ground on which the learned Member, Board of Revenue reversed the order of the Commissioner was that second appeal was not competent in view of section 67(c), proviso (ii) of the Ordinance, which provides that when an original order or decree is confirmed on first appeal, a further appeal shall not lie. In the High Court the appellants supported the order of the Commissioner on the argument that although second appeal as such was not competent in this case, the Commissioner had otherwise ample power to pass the order under section 71 subsection (2) read with subsection (4) of the Ordinance and therefore, it cannot be said to have been passed without jurisdiction. The argument, however, did not find favour with the learned Judges of the Division Bench mainly for the reason that the Commissioner had no power to pass final order even in exercise of revisional jurisdiction under section 71 but was required to refer the case for orders of the Board of Revenue. In order to appreciate the contention of the learned counsel section 71 is reproduced herein under:-- "Section 71. Power to call for examine and revise proceedings of Revenue Officers and Revenue Courts.--(1) The Board of Revenue may at any time call for the record of any case pending before, or disposed of by, any Revenue Officer or Revenue Court subordinate to him. (2) A Commissioner or Collector may call for the record of any case pending before, or disposed of by, any Revenue Officer or Revenue Court under his control. (3) If in any case in which a Commissioner or Collector has called for a record he is of opinion that the proceedings taken or the order or decree made should be modified or reversed, he shall submit the record with his opinion on the case for the orders of the Board of Revenue. (4) If, after examining a record called for under subsection (1), or subsection (2) or submitted under subsection (3), the Board of Revenue or the Commissioner, as the case may be, is of opinion that it is expedient to interfere with the proceedings or the order or decree, it or he, as the case may be, shall pass an order accordingly. (5) If, after examining the record, the Board of Revenue is of opinion that it is expedient to interfere with the proceedings or the order or decree on any ground on which the High Court in the exercise of its revisional jurisdiction may, under the law for the time being in force, interfere with proceedings or an order or decree of a Civil Court, it shall fix a day of hearing the case, and may, on that or any subsequent day to which it may adjourn the hearing or which he may appoint in this behalf, pass such order as it thinks fit in the case. (6)

' On a careful reading of the various subsections of section 71, it appears to us that there is a clash between subsections (3) and (4). The learned Judges of the High Court seem to have taken the view that the Commissioner has no power to pass orders in cases in which he has called for the record of any case from the subordinate Revenue Officer or Revenue Court, in view of the provisions of subsection (3) which seem to require the Commissioner to record his opinion and submit the same for orders of the Board of Revenue of subsection- However, the plain reading gives a contrary result, which seems to provide that after examining the record called for by the Commissioner under subsection (2), if he is of the opinion that it is expedient to interfere with the proceedings or the order or decree, he shall pass an order accordingly. The words "it or he" in this subsection take the matter beyond any ambiguity that both the Board of Revenue as well as the Commissioner can pass orders thereunder. We are, therefore, of the opinion that an authoritative interpretation of the provisions of section 71 in the aforesaid context requires to be made by this Court. The submission of the appellants that although they had purported to rile an appeal before the Commissioner, any order passed by him would be immune from attack as he otherwise possesses the same power under section 71 of the Ordinance receives support from a judgment of this Court in Kala v. Board of Revenue and another PLD 1985 SC 208, which lays down that non-mention of any provision of law is a mere matter of technicality and it is the substance of the prayer contained in the proceedings which determines the validity of the order so that if the repository of any statutory power acts within the ambit of that power, the order would be perfectly valid. In another case of this Court Pir Muhammad Farid Jan v. Colonisation Officer Sukkur Barrage PLD 1965 SC 399 it was laid down that .even if, therefore, the intermediate appellate links were weak, the final order in revision, referable as it was to section 211 (of the Sindh Land Revenue Code, 1879), could not be successfully assailed as illegal." Therefore, we find force in the contention of the appellants on both points, namely, that the Commissioner was competent to pass final order in the case and even if the appeal of the appellants was not competent as such the Commissioner's order was referable to his power under section 71 of the Ordinance and as such was not illegal. Accordingly the points: that the Commissioner was competent to pass the final order in the case and even if the appeal of the petitioners/appellants was not competent as such, the Commissioner's order was referable to his powers A under section 71 of the Ordinance, as such it was not illegal, were noted for examination by this Court. It is admitted by both the learned counsel that a second a appeal in this case was not competent. Accordingly in so far as this aspect of the matter is B concerned, the judgments of the High Court and the Member, Board of Revenue unexceptionable; but, this would not end the matter. A further question as noted at the time of grant of leave to appeal needs more serious consideration as to whether the Commissioner could not have passed the same order as was impugned before the Board of Revenue in the revisional jurisdiction under section 71 of the Ordinance. In the present case it has to be kept in mind that the order passed by the Commissioner was one of reversal which would fall within subsection (3) of section

71. It clearly provided that such an order could not be passed by the Commissioner under the said subsection. If he had reached the conclusion that the order impugned before him was to be reversed, he could have submitted the record with his opinion for the orders of the Board of Revenue, who would have then passed the final order. It is true that under subsection (4) also the Commissioner could have passed an order in revision but keeping in view the change of language it subsection (4) from that used in subsection (3) it has to be observed that the order, by him under subsection (4) would be possible only in those cases which are not controlled by subsection (3). Although, prima facie, it appears as if there is no practical difference between the end result achieved either under subsection (3) or under subsection (4); but, on deeper scrutiny the difference in language used therein, it appears, was not without substantial reason. The cases referred in subsection (3) are those in which a final decree or a final order is to be modified or reversed; and for that matter the same would apply, to "proceedings taken" which have the character of finality like that of a final decree or final order. The key to the interpretation o' the expression "proceedings taken" and the word "order" as used in subsection (3) lies in the use of the word "decree" with which they have been used together, followed by same phraseology applicable to all of them; namely, "should be modified or reversed". Hence when action/proceedings, order or a decree having the character of finality which is/are intended to be modified or reversed, the case will fall under subsection (3) and the Commissioner would not be competent to pass final order. He will submit the record to the Board of Revenue and the final order will be passed by that forum. Barring the cases covered under subsection (3) all other cases shall fall under subsection (4), by virtue of which the Commissioner would be able himself to pass an order without submitting the case to the Board of Revenue if in his opinion "it is expedient to interfere with the proceedings, or the order or decree" as the case may be. Some argument was i addressed as to what type of cases would be covered under subjection (4) which are not covered by subsection (3) . It is not necessary to give an exhaustive list, it' would be enough to say that any decree may be a preliminary decree or an order may be an interlocutory order and/or any proceedings or action which do not F have the character of finality, could be interfered with under subsection (4) directly by the Commissioner, in cases the record whereof may have been called for by him under subsection (2). It may be clarified here that the Board of Revenue would also have undoubtedly power, to pass order under subsection (4) in those cases in which either the matter has been submitted to him under subsection (3) or the record whereof has been summoned by the Board of Revenue itself under subsection (1). Hence under subsection (4) while the Board of Revenue would have power to deal with the cases brought before it under subsection (1) or under subsection (3); the Commissioner would have the power under subsection (4) to pass orders in respect of the cases covered by subsection (2). A further distinction would be that while the Board of Revenue would have power under subsection (4) to pass final orders in cases in which the impugned order, decree or proceedings are of final character as well as in those which do not have such final character; the Commissioner will be able to pass orders only in those cases in which the decree, order or proceedings under question, are not of final character. Despite having resolved the seeming conflict between subsections (3) and 4) of section 71 of the Ordinance as discussed above, this by itself would not resolve the controversy in this case. An additional principle would have to be pressed into service. Both the learned counsel agreed that like the High Court which is an appellate forum, the Commissioner in this case being an appellate forum, could exercise revisional jurisdiction if otherwise available; even if the case requiring such exercise of power is not or has not been brought before the High Court or for that matter before him as a revision and is pending as an appeal. The latest judgment on this subject of this Court 'Karamat Hussain and others v. Mohammad Zaman and others' PLD 1987 Supreme Court 139 supports the position taken by both the learned counsel. Thus the Commissioner had power, jurisdiction and competence to treat the appeal of the appellants pending before him as a revision under section

71. It is also an accepted rule that if a lower forum H has failed to mention or adopt a correct procedure, the higher forum in the same hierarchy or for that matter the superior Courts in their extraordinary jurisdiction are competent to correct this error. There is no dearth of authorities on this subject either. Hence while the Commissioner was not properly advised when setting aside the order passed by the Collector in appellate jurisdiction, nor was he advised to convert the appeal into revision at the proper stage, it was within the jurisdiction and competence of the Board of Revenue to correct this error. J And if the Board of Revenue failed to correct this error the High Court could do the needful in this behalf. If the failure in this behalf would have been rectified by' the Board of Revenue, as observed above, the results would have been different; namely, that the Board of Revenue could not have set aside the order of the Commissioner on the ground of lack of competency; though, it had the power to examine the case on merits and affirm, modify or reverse the opinion of Commissioner on merits treating it as one expressed under section 71(3). The High Court could have, while allowing the appellants' writ petition, remanded the case to the Board of Revenue for following this procedure on merits. There is nothing wrong in the case of the appellants, for the High Court not to have followed this procedure in exercise of its writ jurisdiction. Accordingly, while allowing this appeal we set aside the impugned judgment as also the order passed by the Board of Revenue and remand the case to the Board of Revenue for fresh decision of the revision filed by the respondents before it which shall be deemed to be pending. As discussed above the Board of Revenue shall assume that the order passed by the Commissioner was an opinion under subsection (3) of section ill where under it could be treated to have come before it for orders. Thus the Board of Revenue shall further treat the revision before it as a case of an opinion submitted by the Commissioner under subsection (3)it would have jurisdiction,' power and competence to accept or reject the opinion under subsection (4), of course after observing the other formalities and procedures in accordance with law. Order accordingly. The parties shall bear their own costs. M.B.A./A-494/S Case remanded.