P L D 1980 Supreme Court 183 Present : Dorab Patel, Muhammad Haleem and Abdul Kadir Shaikh, JJ (PLP)

MUHAMMAD HA,uEM, J..-This appeal is by special leave which arises out of the judgment of the Peshawar 14ig h Court, Peshawar, dated 5th of May, 1972, by which Writ Petition No. 43 of 1972 was dismissed in limine. The appellants purchased land on a road side situate in village Loand Kus Tarao Banday Dus Pacha, Malakand Agency, from one Jahandad on 20th of January, 1963, for a sale consideration of Rs. 12,

000. The first respondent, on 9th August, 1975, instituted a suit for pre-empting the sale of this land which was referred to the Council-of-Elders under section 8(1) of the Frontier Crimes Regulation, 1901. The appellants resisted the suit on the ground that the sale was not pre-emptible as it was purchased for the purpose of raising a commercial-cum-residential building but this plea did not prevail with the Members of the Council-of-Elders who by their Award recommended that the suit be decreed on payment of Rs. 5,

000. The A. D. M., Malakand by order dated 30th of December, 1967, decreed the suit against which a revision was filed under section 49 before the Commissioner who by order dated 16th of May, 1968, remanded the case to the Council-of-Elders for determining the value of the land and further directed that the final order shall be passed by the A. D. M. The Council-of-Elders, after spot inspection, determined the market value of the land at Rs. 30,000 and referred' it to the A. D. M., on 4th of March, 1969, tbr confirmation; and on the same date the A. D. M., decreed the suit for payment of Rs. 30,

000. The first respondent, thereafter, went in revision to challenge the enhanced price but the Commissioner rejected it by order dated 6th of June, 1969. `he first respondent did not deposit the amount within three months from the date of the final order as was the Riwaj. The appellants, thereupon, applied to the A. D. M. that as the money had not been p-aid, the right to pre-empt stands extinguished. This matter was again referred to the Council of Elders and by their recommendation dated 29th of May, 1970, they accepted the plea of the appellants which was confirmed by A. D. M. by order dated 29th of July, 1970. The appellants were further allowed to construct on the land by this order. The revision against this order failed as it was dismissed by the Commissioner on 16th of July, 1971. The first respondent, thereupon, submitted a second revision before the Officer on Special Duty, Government of N.-W. F. P., Peshawar, which was allowed by order dated 13th of January, 1972, and the case was remanded to the Council-of-Elders to re-measure the land for ascertaining the price. The appellants challenged this order in the aforementioned Writ Petition but did not succeed. The objection as to the jurisdiction was not raised before the High Court. However, it was contended that the impugned order was passed without hearing one of the appellants namely, Khuda Bakhsb, but the High Court rejected this contention on the ground that no objection was taken either before the Council-of-Elders at any subsequent stage at the proceedings and, therefore, this contention was without substance particularly in the context of the fact that he was the real brother of the other two petitioners who had participated in the proceedings. The next objection as to the refusal to allow the counsel to appear was also rejected on the premise that he had "withdrawn on his own without any compulsion". Lastly, the High Court rejected the third contention which was to the effect that as the first respondent had not deposited the price within the prescribed period, his right to pre-empt the sale stood extinguished. In holding so, the High Court was influenced by the fact that the first respondent had raised an objection before the Council of Elders for, measuring the land without which there could not be any determination of the price and as such there was no valid estimation of the price which could be deposited within the prescribed period. Leave to appeal was granted to consider as to whether the second revision lay to the Officer on Special Duty under the Frontier Crimes Regulation, 1901. The learned counsel for the appellants vehemently urged that section 49 of the Frontier Crimes Regulation makes a provision for one revision only and, therefore, the second revision to the Officer on Special Duty was incompetent. Section 49 reads "

49. The Commissioner may call for the record of any proceedings under this Regulation and revise any decision, decree, sentence or order given, passed or made therein." It is clear from the language of this section that it comprehends only one revision, and, therefore, there cannot be two opinions on this question. The learned counsel for the first respondent, however, referred to two Notifications dated 20th of December, 1971 and 19th of September, 1972, to contend that under clause 2(c) of the Regulation, the power of the Commissioner to hear the revision was superseded and instead the Officer o Special Duty was vested with the powers to hear the revision, but he did not place those Notifications before us although he had notice of the ground on which leave was granted. Accordingly, it is not possible to consider the effect of those Notifications, if at all they had been issued without examining them. In this view of the matter it was Commissioner who had the Jurisdiction under section 49 to hear the revision; and having beard and rejected it by order dated 16th of July, 1971, the second revision to the Officer on Special Duty was incompetent. Therefore, the appeal is allowed with costs. . s. n. H. Appeal allowed.