MIRZA VIQAS RAUF , J. This constitutional petition impugns order dated 22 June, 2011, whereby Additional Commissioner (Revenue), Rawalpindi Division proceeded to allow a revision petition filed by Muhammad Zahoor , deceased respondent No.4.
2. Briefly stated facts giving rise to the instant petition are that the petitioners instituted a suit for ejectment before the Tehsildar/Assistant Commissioner-I, Kallar Syedan, Rawalpindi averring therein that they are owners of land measuring 78 Kanals 09 Marlas bearing Khewat No.280 situated in Jochh-mamdot, Kallar Syedan, which is in possession of the private respondents as tenants at will. It is asserted that tenants failed to pay produce/rent since Rabi 2004 and they did not cultivate the land according to the direction of the landlord and also caused damage to the land. Some of the respondents on account of absence were proceeded ex-parte whereas respondents No.4 to 6, 10, 14 & 17 contested the suit. The suit was finally decreed by way of order dated 06 November , 2008 and an eviction order was passed against the respondents (tenants). An appeal was filed by respondents No.4 to 38 before the Collector but of no avail and same was dismissed by way of order dated 06 December , 2008. This followed a revision petition before the Additional Commissioner (Revenue) Rawalpindi Division, who accepted the same through impugned order .
3. Learned counsel for the petitioners contended that impugned order is without jurisdiction as Additional Commissioner was having no authority to entertain the revision petition. It is submitted that well-reasoned order passed by the lower foras has been set at naught without assigning any lawful reasoning. Learned counsel, however, has very fairly conceded that the eviction order is not sustainable as per mandate of Rule 4(5) of the Punjab Land Reforms (Procedure for Ejectment Suits) Rules, 1977. In order to supplement his contentions, learned counsel places reliance on "S.M. WASEEM ASHRAF versus FEDERATION OF PAKISTAN throughnd th th Secretary, M/O Housing and Works, Islamabad and others" (2013 SCMR 338) and "IMTIAZ GOHAR, ETC. versus ADDL. COMMISSIONER, ETC." (NLR 1991 Revenue 40).
4. Conversely , learned counsel for private respondents submitted that by virtue of Section 9 of the Land Revenue Act, 1967 as amended through the Punjab Act V of 2011, Additional Commissioner was vested with the jurisdiction to decide the revision petition and as such impugned order is completely in accord with law. Learned counsel contended that the petitioners have failed to point out any illegality or material irregularity in the impugned order, warranting interference by this Court in exercise of constitutional jurisdiction.
5. Contrary to this, learned law of ficer supported the contentions of learned counsel for the petitioners.
6. Heard. Record perused.
7. Part VII of the Land Reforms Regulation, 1972 deals with the tenants. Paragr aph No.25 defines the rights of tenants, which reads as under :- "25. Rights of tenants. (1) Subject to the other provisions of this Regulation, a tenant shall not be ejected from his tenancy unless it is established in a revenue Court that he has --
(a) failed to pay the rent in accordance with the terms of his tenancy; or
(b) used the land comprised in the tenanc y in a manner which renders it unfit for the purposes for which he held it; or
(c) failed to cultivate or arrange for the cultivation of the land comprised in the tenancy in accordance with the terms thereof, or if there are no express terms in this behalf, in accordance with the customary manner of cultivation in the locality; or
(d) sub-let his tenancy .
(2) The crop grown at any time during Rabi 1971-72 on any land comprised in a tenancy shall, on its maturing, be apportioned between the tenant and the landlord in accordance with the law for the time being in force.
(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 this sub- paragraph revising or modifying an order affecting any person unless such person has been afforded an opportunity of being heard: Provided further that 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 limitation provided for in sub-paragraph
(6) or sub-paragraph (7), the provisions of sections 5 and 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 Punjab Land Revenue Act, 1967 (W.P. Act XVII of 1967)."
In order to carry out the purposes of sub-paragraph (1) of paragraph No.25 ibid, the Land Commission of the Punjab in exercise of the powers conferred by paragraph No.6 of the Land Reforms Regulation, 1972 (Martial Law Regulation No.115) and in supersession of the Punjab Land Reforms (Procedure for Ejectment Suits) Rules, 1974 made the Punjab Land Reforms (Procedure for Ejectment Suits) Rules, 1977 (hereinafter referred as "Ejectment Suits Rules, 1977"). By virtue of said rules a landlord who is desirous to eject his tenant has to file a suit before the Revenue Court of Assistant Collector of the First Grade within whose jurisdiction the land comprising the tenancy is situated, through a plaint described in Rule 3. Rule of procedure is embodied in the subsequent rule i.e. Rule 4. Sub- rule (4) of the said rule casts a duty upon the Assistant Collector to dispose of the plaint within sixty days of its receipt. The consequences for not deciding the suit within prescribed period are provided under sub-rule (5) which reads as under :- "4. Rules of procedure. (1)
(2)
(3)
(4)
(5) If the said Court fails to decide a case within the stipulated period of sixty days, the case shall stand transferred to the Court of Collector concerned to be tried in the same manner as in the original Court. The case so transferred shall be disposed of within thirty days and the order passed by the Collector shall be final. "
It is not disputed by any of the parties that the court of first instance passed the eviction order after the expiry of sixty days. It means that on the day when the suit was decreed the Assistant Collector had become functus officio as per mandate of sub-rule (5) referred hereinabove.
8. Now adverting to the moot point as to whether impugned order is without jurisdiction being passed by the Additional Commissioner , it is observed that Rule 7 of "Ejectment Suits Rules, 1977" provides the remedy of appeal and revision. In terms thereof, an appeal may be filed within fifteen days of the order of the Assistant Collector of the First Grade before the Collector whose order shall be final. The revisional jurisdiction vests with the Commissioner , who may at any time of his own motion or on a petition made in that behalf to him by any aggrieved tenant within fifteen days of the impugned order , call for the record of any case disposed of by or proceedings pending with any Assistant Collector of the First Grade or a Collector subordinate to him. This right of revision is only available to a tenant and not to landlord. The order so passed by the Commissioner shall be final. In the present case the revision petition was entertained by an Additional Commission er, who figures nowhere in the scheme of Rule 7 of "Ejectment Suits Rules, 1977". The question as to whether the Additional Commissioner was competent to exercise revision powers in place of the Commissioner is though previously answered by this Court in the case of "IMTIAZ GOHAR, ETC. versus ADDL. COMMISSIONER, ETC." (NLR 1991 Revenue 40), while holding that "power to hear revision petitions under Rule 7 of "Ejectment Suits Rules, 1977" vests in the Commissioner and this power could not be exercised by the Additional Commissioner" . The above said principles were, however , laid in view of Sections 8 & 9 of the Land Revenue Act, 1967 existing in the statute at the relevant time. Sections 8 & 9 of the Land Revenue Act, 1967, however , have undergone a radical change later on by virtue of Punjab Act V of 201 1.
9. In order to properly comprehend the proposition in hand, it would be advantageous to first make a comparative analysis of both the provisions existing prior and after the amendment.
"8. Appointment of Commissioners and Collectors. For each Division there shall be a Commissioner and in each District there shall be a Collector, who shall be appointed by Government, and who shall exercise throughout the Division or District, as the case may be, all the powers, and discharge all the duties, of the Commissioner or Collector as the case may be, under this Act."
Substituted as under :- "8. Appointment of Commissioner and Collectors. The Government shall appoint a Commissioner of a Division and a Collector of a District. "
"9. Additional Commissioners and Additional Collectors. Government may appoint in any Divis ion an Additional Commissioner or in any District an Additional Collector , who shall exercise throughout the Division or District concerned all or any of the powers and discharge all or any of the duties conferred or imposed on a Commissioner or Collector , as the case may be, by or under this Act, subject to the general supervision and control of the Commissioner of the Division in the case of Additional Commissioner , and the Collector of the District in the case of Additional Collector ."
Substituted as under :-
9. Additional Commissioners and Additional Collectors. (1) The Government may appoint an Additional Commissioner of a Division, who shall subject to the general control of the Commissioner, exercise any of the powers and discharge any of the duties conferred or imposed on the Commissioner.
(2) The Government may appoint an Additional Collector of a District, who shall, subject to the general control of the Collector, exercise any of the powers and discharge any of the duties conferred or imposed on the Collector."
From the bare perusal of the above referred provisions, it is manifestly clear that prior to amendment, the appointment of Commissioner as well as the Additional Commissioner and the delegation of functions of the Commissioner to the Additional Commissioner for the purpose to exercise the powers and discharge all or any of the duties conferred or imposed on a Commissioner were made subject to the land Revenue Act, 1967 whereas the amending provisions remove such restriction and now the Additional Commissioner can exercise any of the powers and discharge any of the duties conferred or imposed on the Commissioner subject to his general control. Due to this distinction the judgment in Imtiaz Gohar's case supra is no more attracted to the instant case.
10. So far principles land down in the case of "S.M. WASEEM ASHRAF versus FEDERA TION OF PAKIST AN through Secretary , M/O Housing and Works, Islamabad and others" (2013 SCMR 338) that "where any forum or court adjudicated and decided a matter without jurisdiction, such decision would be void and of no legal effect," there can be no second opinion to this ef fect.
11. The word "Commissioner" has nowhe re been defined in the Land Reforms Regulation, 1972. This expression without any hint of doubt corresponds to the word "Commissioner" find mention in the Land Revenue Act, 1967.
Since by virtue of Amending Act, 2011 an Additional Commissioner is bestowed with the authority to exercise any of the powers and discharge any of the dutie s conferred or imposed on the Commissioner . There was no impediment in the way of Additional Commissioner to decide the revision petition, as such impugned order cannot be termed as coram non-judice It is, however , noteworthy that the impugned order as well as order of the Collector and the Assistant Collector could not sustain being in oblivion of sub-rule (5) of Rule 4 of "Ejectment Suits Rules, 1977".
12. As already observed that the Assistant Collector was obliged to dispose of the complaint within sixty days of its receipt and failure to decide a case within stipulated period attracts the automatic consequences provided under sub-rule (5) of Rule 4 of "Ejectment Suits Rules, 1977" by virtue of which the case shall stand transferred to the court of Collector concerned for its trial in the same manner as in the original court. Proceedings thus conducted by the Assistant Collector after expiry of sixty days were of no legal effect as he had become functus officio on expiry of sixty days and he was precluded to lay its hand on the said suit after the target date. Since order dated 06 November , 2008 was illegal and unlawful, so the superstructure built thereon shall automatically fall down.
13. The nutshell of above discussion is that instant petition is accepted , as a result thereof, impugned orders dated 22nd June, 2011 passed by the Additional Commissioner (Revenue), Rawalpindi Division and 06th December , 2008 passed by the Deputy District Officer (Revenue)/Collector , Tehsil Kallar Syed an, Rawalpindi as well as order dated 06th November , 2008 passed by the Assistant Collector are set aside being illegal and unlawful. As a result thereof, ejectment suit shall be deemed to be pending before the Collector concerned as per mandate of sub-rule" th
(5) of Rule 4 of the "Ejectment Suits Rules, 1977", who shall proceed with the same accordingly with no order as to costs.