1981 SCMR1146 (PLP)

(3) As from Kharif 1972- (a) land revenue and other taxes, cesses, . surcharge and levies on land shall be payable by the owner; (b) the liability for payment of water-rate, and providing seed for any land shall be that of the owner or other person in possession thereof, other than the tenant; (c) the cost of fertilizers and pesticides required for the land comprised in a tenancy shall be shared equally between the owner and the tenant; (d) subject to the other provisions of this Regulation, a tenant shall have the first right of pre-emption in respect of the land comprised in tenancy. (4) No owner or person in possession of any land shall levy any cess on, or take any free labour from, any of his tenants. (5) 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 within whose jurisdiction the land in respect of which the right of pre-emption has been claimed is situated, and all such suits which may be pending in any Court immediately before the commencement of the Land Reforms (Amendment) Ordinance, 1976, shall, on such commencement, stand transferred to the Collector concerned. (6) Any person aggrieved by an order passed by a Collector under the preceding sub-paragraph may, within thirty days of such order, prefer an appeal to Commissioner. (7) The Board of Revenue may at any time of its own motion or otherwise call for the record of any case or proceedings under this paragraph which is pending or in which a Collector or Commissioner has passed an order, for the purpose of satisfying itself as to the correctness, legality or propriety of such proceedings or order, and may pass such order in relation thereto as it thinks fit Provided that no order shall be passed under the sub-paragraph revising or modifying an order affecting any person unless such person has been afforded an opportunity of being heard: Provided further the record of any case or proceedings in which a Collector or Commissioner has passed an order shall not be called for under this sub-paragraph on the application of any aggrieved person made after the expiration of thirty days from the date of such order. (8) For the purposes of this paragraph a Collector, a Commissioner and the Board of Revenue shall be deemed to be a civil Court and shall have all powers of a civil Court under any law for the time being. In force and the final order passed in such, suits shall be deemed to be a decree of a civil Court and shall be executed as such. (9) In computing the limitations provided for in sub-paragraph (6) or b-paragraph (7), the provisions of section 5 and section 12 of the Limitation Act, 1908 (IX of 1908), shall apply. Explanation.-In this paragraph, 'Collector' `Commissioner' and 'Board of Revenue' have the meaning assigned to them in the West Pakistan Land Revenue Act, 1967 (W. P. Act XVII of 1967). The provisions for restoration of tenancies of tenants ejected in un authorized manner, then in the field, were contained in notification dated 9th March, 1977 which reads as hereunder: (1) A tenant who is or has been ejected or dispossessed from his tenancy in an authorised manner, may make an application to a Revenue Officer of the area concerned exercising the powers of an Assistant Collector 1st Grade asking for his tenancy to be restored. Such an application shall be made within 30 days of the alleged ejectment, unless the Revenue Officer is satisfied that the application has sufficient cause for not making the application within the period of 30 days. (ii) On receiving an application under clause (i), the Revenue Officer shall hold an enquiry and if he is satisfied, after giving an opportunity of being heard to the landlord, that the ejectment was unauthorised, he shall order the restoration of the tenancy. (iii) The Revenue Officer shall dispose of the application within sixty days of its receipt (iv) If the Revenue Officer exercising the powers of an Assistant Collector Ist Grade fails to decide a case within the stipulated period of sixty days the case shall stand transferred, to the Collector to be tried in the same manner as in the original Court. The Collector shall dispose of the case so transferred within thirty days and the order passed by him shall be final. Explanation. -The Collector for the purposes of these provisions shall mean the Assistant Commissioner in charge of a Sub-Division exercising the powers of Collector under the Punjab Land Revenue Act, 1967. (v) When the case stands transferred to the Collector under clause (iv), the lower Court shall forward the record of the case to the Collector along with an explanation for its failure to decide the case within the prescribed period of sixty days. If the Collector does not find such an explanation satisfactory, the Officer concerned shall be censured and liable to disciplinary action under the Punjab Civil Servants (Efficiency and Discipline) Rules, 1975. (vi)When an order is made in favour of the tenant under clause (ii) above, the tenant shall be put in possession of the tenancy within thirty days of the order, if no appeal is filed and in case of appeal, with in thirty days of the order of the appellate Court, provided the order restoring the tenancy is upheld by the appellate Court. (2) When an order is made in favour of the tenant under clause (iv) by he shall be put in possession of the tenancy with in thirty days of the order. (vii) (1) Any person aggrieved by an order made under clause (ii) by the Revenue Officer exercising the powers of an Assistant Collector 1st Grade may file an appeal to the Collector. (2) The period of limitation for filing an appeal shall be fifteen days and it shall run from the date of order appealed against Provided that in computing the period prescribed for filing an appeal under this sub-clause, the period duly spent in obtaining certified copy of the order should be excluded. (3) The order passed in appeal by the appellate Court shall be final. (iii) (1) The Commissioner may, at any time of his own motion or on application made to him by a tenant in that behalf within fifteen days of the passing of any order call for the record of any case or proceeding under these provisions which is pending or in which a Revenue Officer exercising the powers of Collector or an Assistant Collector 1st Grade has passed any order for the purpose of satisfying himself about the correctness, legality or propriety of such an order or proceedings and may make such fresh order in relation thereto as he thinks fit. (2) In computing the period prescribed for filing a petition for revision Under the last foregoing sub-clause (1), the period duly spent in obtaining certified copy of the order should be excluded. (3) Permission to file a revision will be available only to a tenant and not to the landlord. (4) The order passed by the Commissioner in revision shall be final."

9. An examination of para. 25 of the Regulation and the procedure prescribed leave no manner of doubt that it deals with rights of tenants. It recognized their right, for the first time, to pre-empt sale of the land of which they were the tenants and were given the most preferential position in that matter. On the one hand this para. Protects a tenant against eviction except on the grounds and manner stated, and entitles him to pre-empt the sale, on the other hand it provides a forum, a speedy procedure for A the enforcement of these rights and protections. The disturbance of the rights of a tenant may take place not necessarily always by the landlord. It may be by others but either at the behest or for the benefit of the landlord. It may be by others, as in this case, in order to defeat a right of tenant arising out of such a tenancy. There are no express words in para. 25 suggesting that it is only the landlord who has to be proceeded against. To impose a restraint when the language does not so permit and absurdity results would be against all canons of interpretation. In order to give full meaning and effect to the scheme of the law, to advance its purposes and objects this provision cannot be so narrowly interpreted as to confine the proceedings always to one between landlord and tenant. The substance of controversy will have to be seen in order to determine what is the right of the individual and in what capacity he is being subjected to the inroad or violation. If it be as a tenant and tenants' rights guaranteed under the Regulation for which a separate forum has been provided and a. summary procedure as well, then even if the intruder be not strictly speaking a landlord, the proceedings would be competent before the designated authorities. A different view of the provisions will defeat the very object of these provisions, divert the proceeding to factums other than the designated ones, frustrate the rights guaranteed. There cannot be a more Illustrative case than the present one. The vendor the original landlord had lost interest having sold the property. The vendee who substituted the landlord was B threatened with two pre-emption claims. He could not feel unhappy over one of the preemptors disappearing from the scene without his direct, involvement or effort in the matter. The rival pre-emptor, who on success as a pre-emptor substitutes the vendee-landlord from the date of sale accomplishes ouster of the tenant. The tenant can, on that other view, proceed in Court of plenary jurisdiction for restoration of possession and if and when the ousted tenant succeeds, his pre-emption claim would have been lost irretrievably.

10. The learned counsel for Malla and others has referred to two decisions of the Lahore High Court in support of the claim that whatever be the nature of rights violated under para. 25 a landlord and a landlord alone can be proceeded against. Proceedings against any other person must be removed to Courts of plenary jurisdiction. In the case of Khadim Hussain v. Assistant Collector etc. (P L D 1977 Lab. 194), the sons of the landlord along with the landlord were proceeded against. The proceedings were not held to be without jurisdiction but it was held that the son could not be criminally prosecuted under section 30 of the Regulation. This decision in fact goes against Malta and others because; it was held that a person not the landlord could have no locus standi to file a constitutional petition against an order of restoration of possession in favour of tenant. We would not go to hold so in case of Malla and others because of the peculiar facts of this case. The other case of Asghar Ali and others v. Muhammad Siddique Javed (P L D 1977 Lab. 596), has no relevance as it concerned the grant of ad interim injunction in a preemption suit, in civil Court, after the tenant had been forcibly dispossessed.

11. There is another feature of the case, which deserves attention. Keeping in view the nature of the proceedings initiated by Malla and others. They bad at no stage denied having substituted themselves and being in occupation of the land. They had contested the proceedings, taking different pleas on facts. Every time they had failed. The reason for their ousting Jehangir was also obvious and so was the lack of interest shown by vendees who were under threat of pre-emptive claim from two sides, the collateral as well as the tenant. The same learned Judge had in coming to the conclu sion that it was a wrongful claim which was the basis of the two petitions before him could have as well notwithstanding the merits of the objections to jurisdiction if any denied them the discretionary relief in a matter like this.

12. As regards the finding of fact; Jehangir had surrendered the land or that he had not been forcibly thrown out f it, we find that all the authorities have held against Malla and others. . We would not in these proceedings substitute that finding. Besides, we are not impressed by the submissions made in this respect. The Statement recorded before the Tehsildar relied upon is also not of much vise because Jehangir repudiated it at the earliest opportunity. Apart from these two facts there is the record of contentions and prolonged ''proceedings which show that it could not be a case of surrender of tenancy.

13. In the circumstances and for reasons given, we accept the appeal with costs, dismiss the constitutional petition filed by Malla and others and refuse leave to appeal in the other petition filed by them. Order accordingly.