1. ZAFFAR HUSSAIN MIRZA, J.-Leave to appeal was granted in this case to examine the question of jurisdiction of the Assistant Commissioner, Hernai, to constitute a Tribunal under the provisions of the Civil Procedure (Special Provisions) Ordinance, 1968 (hereinafter to be referred to as West Pakistan Ordinance No. I of 1968), as the parties had not consented to its application in compliance with the proviso to section 3(1) as the area in question was contended to be excluded from the operation of the provisions of this Ordinance.
2. The petition for special leave to appeal was directed against the main judgment, dated 25-7-1981, in Constitutional Petition No. 19 of 1981 filed, by .The 'respondents, as well as against the order, dated 5-10-1981 on the Review Application No. 4 of 1981 filed by the present appellants. In the leave granting Order IV of this Court, the question of limitation was left open for decision as the petition was out of time by 41 days as regards the main impugned judgment.
3. At the hearing before us, therefore, the preliminary question of limitation was first taken up for consideration. The only ground on which the condona--petition of delay was sought on behalf of the appellants was that' they were pur--suing their remedy in review proceedings and if the period taken in the disposal of the review application filed by the appellants is excluded, the petition for leave to appeal would be well within time. On behalf of the respondents, however, it was forcefully contended that even if the time for the conclusion of the review proceedings is condoned, the prayer for condonation for the remain--ing period is not justifiable since no explanation whatsoever has been given for the rest of the period of delay in presenting the petition. After submitting these arguments, both counsel agree that the petition for leave to appeal being within time as regards the review order, this appeal may be disposed of as an appeal from the order, dated 5-10-1981. In these circumstances, we, therefore, dismiss the application for condonation of delay and the appeal as regards the main judgment of the High Court, dated 25-7-1981. The counsel for the parties were, therefore, heard in regard to the appeal arising out of the review order.
4. The parties to this appeal are residents of village Killi Ahmadoon, Sub-Tehsil Ziarat in Sibi District of Baluchistan Province. The case of the appellants is that there exists no road connecting village Ahmadoon with the main road for vehicular traffic. There are, however.- two foot tracks which are used by pedestrains for going to the village and both these tracks pass through the village graveyard. On or about 1-7-1979, the respondents Nos. 1 and 2 (for convenience to be referred to as the private respondents), brought over a grader/buldozer in an attempt to make a road over one of the existing tracks and allegedly damaged several graves as well as desecrated some corpses of the ancestors or relatives of the appellants. The members of the appellants tribe having been aggrieved by the alleged action on the part of the respondents, the appellants moved the Deputy Commissioner, Sibi District, by an application dated 3-7-197, requesting to forthwith stop the construction of the road and take legal action against the respondents in order to save the graveyard from desecration. The Deputy Commissioner called for the report of the Naib Tehsildar, Ziarat, and also directed for the immediate suspension of the work on the track, as well as ordered that securities be obtained from the parties for keeping peace, if necessary. Thereafter, the parties were summoned on 23-9-1979 to appear before the Deputy Commissioner and the appellants requested him that the controversy between the parties be decided in accordance with Shariat or through Arbitration., On this the parties were given time to select the mode for resolving the dispute within 15 days, failing which the road which was closed be re-opened. Subsequently, on the application of the respondents, the Deputy Commissioner by his order, dated 17-10-1979, directed that one of the passages may be opened for public use pending the decision of the dispute. As a result of the aforesaid order steps were taken to have the said track re-opened for vehicular traffic with the help of the levies which caused tension between the parties and the appellants once again moved the Deputy Commissioner, Sibi, on 9-12-1979. The parties submitted opinions of the Qazis on the controversy according to Islamic Law and the Deputy Commissioner after perusing them and considering that the dispute required to be adjudicated as soon as possible, forwarded the case to the Assistant Commissioner, Harndi, for reference to the Tribunal. He also directed that the newly constructed roads passing through the graveyard be forthwith closed for vehicular traffic and be used only by pedestrian traffic, Also the parties were required to be bound down for keeping peace.
5. Aggrieved by the aforesaid decision of the Tribunal the appellants filed a revision application before the Member, Board of Revenue, Baluchistan who b his order, dated 29-1-1981 accepted the revision and set aside the interim order of the Tribunal.
6. The private respondents, thereupon, filed Constitutional Petition No. 19 of 1981, in the High Court of Baluchistan, Quetta. By its judgment, dated 25-7-1981, a Division Bench of the Baluchistan High Court set aside the revisional order of the Member, Board of Revenue, dated 29-1-1981, on the round of lack of jurisdiction to entertain a direct revision without the g aggrieved party first exhausting the remedy of appeal before the Commissioner under the provisions of West Pakistan Ordinance of 1968. The learned Judges further held that the order of the Deputy Commissioner, Sibi, dated - -1979 was also illegal as it had been passed without notice to the respon--dents.
7. The appellants, as already stated, did not challenge the order passed by the High Court disposing of the Constitutional Petition, but instead filed a by the High Review Application No. 4 of 1981 in the High Court raising the following :- (i)The Assistant Commissioner with powers of Deputy Commissioner under Civil Procedure (Special Provisions) Ordinance, 1968 (herein--after referred to as Ordinance I of 1968) did not have the powers refer the dispute for adjudication under the Ordinance as the to jurisdiction of the Civil Judge, Sibi extends to Ziarat; and
(ii) That the matter pertains to two tribes with large population, therefore, the Court while deciding the constitutional petition, should have adopted the procedure laid down in the provisions of Order I, rule 8, C. P. C. SO that all the interested parties could join the proceedings.
8. The High Court dismissed the review application by the impugned order, 14 dated 5-10-1981.
9. It will be convenient to take up for consideration the last contention first. It was argued on behalf of the appellants that the plain reading of the original application, dated 3-7-1979, by which the proceedings were initiated before the Deputy Commissioner, Sibi, clearly shows that it constituted a complaint for a criminal offence and action tinder section 18 of West Pakistan Ordinance 11 of 1968 and, therefore, the same could not be dealt with in accordance with the provisions of West Pakistan Ordinance I of 1968. It was forcefully contended on the other hand on behalf of the respondents that in raising this contention ' the appellants are seeking to set up a new case for the first time before this Court as no such objection was raised before any of the Courts below. On the contrary the appellants participated in the constitution of the Tribunal and also took up stand before the High Court that the proceedings fell within the purview of West Pakistan Ordinance I' of 1968. In this connection reference was made to the counter---affidavit, dated 11-5-1980, filed by the present appellants in the High Court, in which in reply to para. 4 of the petition, it was stated as follows:- "The facts do raise a dispute of civil nature which is cognizable under Ordinance I of 1968. The 1st petitioner was a party to the reference. The order of reference was never challenged."
10. Further in answer to the grounds urged in the Constitutional Petition, the appellants asserted that they had filed their first application competently and the proceedings taken thereon were within the jurisdiction of the Deputy Commissioner under the provisions of West Pakistan Ordinance I of 1968. It is therefore, clear that the appellants not only did not raise the contention under consideration pressed before us but on the contrary all along asserted that the proceedings were properly initiated under the provisions of West Pakistan Ordinance I of 1968. This being the clear position on the record, it is not open to the appellants to now urge that their application was illegally dealt with under the provisions of Ordinance I of 1968.
11. The argument based on the provisions of Order 1, rule 8, Code of Civil Procedure may next be disposed of which was not very seriously pressed before us. The contention that since the interest of the whole tribe was involved in the controversy being the subject- matter of the proceedings before the High Court, it was incumbent upon the High Court to adopt the procedure provided for in Order I, rule 8, C. P. C., is wholly untenable.1 The provisions of rule 8 are only enabling and permissive in nature and it is C not mandatory that wherever there are several persons interested in a suit or proceeding it should be instituted in representative capacity. Such view has been taken in a number of reported cases including Rangal Shah v. Mula Jadal (PLD 1960 Kar. 512 .), in which it was held that if a person has a right to action, be can proceed independently of the others "ho may be having a common cause of action with him, and he does not at all stand in need of including others or to prefer a representative suit. No exception can be taken to this view. Article 199 of the Constitution provides a special remedy to an aggrieved party against the specified persons therein in respect of inter alia, any act done or proceeding taken within the jurisdiction of the concerned High Court and such an aggrieved person is under no obligation to implead in the proceedings others having a common cause of action with him. The contention has, therefore, no substance.
12. The only remaining question to consider is whether the West Pakistan Ordinance I of 1968 was attracted in the present case. This Ordinance was promulgated by the Government of West Pakistan on 16-1-1968 "to provide for certain areas of West Pakistan, special procedure for the adjudica--petition of disputes on certain matters to meet the special requirements of those areas." . Section 3 on which the argument on this point is based, is in the following- terms:- "3. Certain disputes to be adjudicated upon under this Ordinance.-(1) Notwithstanding anything contained in any other law for the time being in force, all disputes of a civil nature, other than any dispute to be determined in. Accordance with the provisions of the Muslim Family Laws Ordinance, 1961 (VIII of 1961), or the Conciliation Courts Ordinance, 1961 (XLIV of 1961), shall be adjudicated upon in accordance with the provisions of this Ordinance: Provided that the provisions of this Ordinance shall not apply to a dispute arising in or relating to any area specified in the Second Schedule, unless all the parties to such dispute make an application in writing to the Deputy Commissioner that such dispute be adjudicated upon in accordance with this Ordinance.
(2) Except as otherwise provided in this Ordinance, the provisions of the Evidence Act, 1872 (I of 1872), and the Code of Civil Procedure, 1908, (V of 1908), shall not apply to any proceedings under this Ordinance."
13. THE SECOND SCHEDULE [See section 3(1)] DistrictTehsilArea
1. Sibi District(i) Sibi---.1.Sibi town excepting Gullu Shahr.
14. Kurk and Khajjak, (ii)Sharig---.Villages but including all the railway quarters on the West side of the Railway line in Sibi, the Military Supply Depot, Public Works Department Inspection bungalow and office and quarters, .
15. 2.Ziarat.
3. Harnai.
2. LoralaiDuki The whole of Duki Tebsil.
16. District.
3. Chagi Nushki ... Nushki Town.
17. District.
4. Quetta-Pisbin QuettaQuetta City and Cantonment.
18. District.
2. Quetta Saddar.
19. The following Mouzas, etc., of the Quetta Tehsil exclusive of the area lying within the limits of the Police Stations of Quetta City, Quetta Cantonment and Quetta Railways:-
(i) The entire area with appurtenant Mahals and Killis of Mouza Sirki, Khusbkaba Shaldaras Kansi, Tirkha Kamsi, Sbebo and Kotwal.
(ii) Mahal Karez Lwar and Killi Lwar in Mauza Ahmed Khanzai.
(iii) Mahals Karez Sultan and Karen Khair Ullah with their Killis in Mauza Karez at Beleli.
(iv) The Military Camp at Beleli:
(v) The area of BeleliSpur comprising the area inhabited and used for any purpose by Hindustan Construction Company Limited.
(vi) Baluchistan Textile Mills Sariab.
20. Pishin------.
(i) Pishin Town.
(ii) Bostan Bazar.
21. Chaman------Cantonment and Town. All Railway Stations and lines in Quetta-Pisbin District."
22. It will be observed that the proviso to this section lays down that the provisions contained in this Ordinance shall not apply to any dispute arising in or relating to any area specified in the Second Schedule, unless all the parties to such dispute agree to such adjudication of the dispute. Section 4 of the Ordinance specifies the disputes of civil nature for the adjudication or settlement of which an application can be made to the Deputy Commissioner, who is then required to constitute a Tribunal in accordance with section 5 thereof and refer the dispute to the Tribunal for decision. It is the contention of the. Appellants that the village Ahmadoon in relation to which or where the dispute in question has arisen, is a part of the territory comprised in Ziarat Sub-Tehsil and the area described as `Ziarat' in the Second Schedule to the Ordinance refers to the entire area comprised in Sub-Tehsil of Ziarat, therefore, the dispute has arisen in an area to which the Ordinance has no application.
23. The factual position as appears from the record is that at the inception of the Ordinance in 1968 the District of Sibi comprised two Tehsils, namely, Sibi and Sharig Ziarat town was situated within the territorial limits of Sharig Tehsil and so was Harnai Town. Village Ahmadoon was also. At that time located in Tehsil Sharig. Ziarat became a Sub-Tehsil with effect from 5-4-1974, vide Government of Baluchistan, Revenue Department Notification No. 1655-1745, dated 20-2-1975. It appears that there existed at this time a Mauza by the name of Ziarat which was also included in the list of Mauzas which formed part of the newly created Sub-Tebsil of Ziarat. In the list of Mahals, included in the Sub-Tehsil of Ziarat, was mentioned Mahal Ziarat in Mauza Ziarat. Ahmadoon was also a separate Mahal in Mauza of the same name in Harnai Tehsil and was included both as Mauza as well as Mahal in Ziarat Sub-Tehsil. From this it appears that at the time of the commencement of West Pakistan Ordinance I of 1968, there existed three territorial units bearing the name of Ziarat, namely, a Town Mauna, and Mahal, but clearly Ahmadoon in any of its territorial connotation did not form part of Ziarat, Mauza or Mahal and came to form part of Sub-Tehsil Ziarat only from 1974.
24. From the aforesaid genesis of the territorial status of village Ahmadoon, it would appear quite obviously that the word 'Ziarat' in any of its territorial signification connoting 'a Town, a Mauza or a Mahal, did not include village Ahmadoon at the commencement of West Pakistan Ordinance I of 1968. In other words it appears fairly clear that Abmadoon fell out--side the area referred to as Ziarat. If the word 'Ziarat' is, thereto,-e, construed with reference to the contemporaneous connotation as a territorial unit, at the time of the commencement of the Ordinance, it had no reference to village Ahmadoon. The question, however, that requires consideration, is whether on the coming into existence of the Sub-Tehsil with the name of 'Ziarat' the larger area included in such revenue administrative unit, will be assimilable to the description of the area by the same name although comprising lesser area originally envisaged in it at the time of the commence-- ment of the Ordinance.
25. Now the object underlying the various principles of interpretation of statutes is to make the legislative intent effective. As observed by Crawford,' the canons of interpretation of statutes are but "instruments in the process of ascertaining the legislative intent when it is in doubt". The express object for describing the areas in the Second Schedule, was to exclude the application of the Ordinance in question over the specified areas; which were left to by governed by the general law.
26. In the very nature of things, therefore, the exact specification of the areas so excluded from the operation of the enactment; was required to have fixity and definiteness, so that the territorial operation of the statute is not left in doubt. The question is, whether a word descriptive of a specified area, used in the statute in relation to its territorial operation or the exclusion from operation of the statute, can assume a different connotation territorially, automatically on the inclusion of areas not earlier included therein, on the basis of an executive act or by means of exercise of power under a different statute, so that the operation of an enactment is either extended to areas to which it did not extend earlier or is excluded from areas which were under its operation. In my opinion, the territorial operation of an enactment or the exclusion of a certain area from the operation of a statute, are legislative acts and if the Legislature has not- dele--gated this power to an executive agency, effect cannot be given to the enlarge--ment of area in either case, as that would amount to usurpation of legislat--ive functions by the executive. This is not permissible in a set up based on distribution of powers. To illustrate this point, it may be stated that if the Second Schedule had used the words 'Ziarat Sub-Tehsil' and at the commence--ment of the Ordinance, Ahmadoon did not form part of this Sub-Tehsil, but subsequently the Government enlarged the area of this Sub-Tehsil so as to include Ahmadoon, it would amount to withdrawing from the operation of the Ordinance, the area of Ahmadoon by an executive act not authorised by the statute itself. The fact that such act of the Government has been done in exercise of powers under sections 5 and 6 of the West Pakistan Land Revenue Act, 1967, will make no difference, so far as the provisions of the West Pakistan Ordinance I of 1968 are concerned, since obviously the powers are granted under the former Act only in regard to the purposes of that act and not to affect the operation of other laws on other subjects.
27. Before us both counsel sought to urge their respective points of view on the basis of the intrinsic aids for interpretation of the word in question, by reference to the Context of the language employed in the Second Schedule to describe the areas excluded from the operation of the Ordinance. The main thrust of the argument on behalf of the appellants was, that whenever Legislature has intended to confine the exclusion clause to a town, it has used the suffix 'Town' or 'Bazar' after the name of the place but that is not the case, so far as Ziarat is concerned. As instances, reference was made to the words 'Sibi Town', 'Nushki Town', 'Quetta City', 'Pishin Town', 'Bostan Bazar', 'Chaman Cantonment and Town'. This, on the other hand, it was urged on behalf of the private respondents, became necessary because the Tehsil name and the name of the Town or other urban area, in all these cases was the same and the 'suffix was used in order to avoid confusion with the entire Tehsil, which happened to bear the same name. On a careful examination of the Second Schedule, it appears, that the submission of the respondents is correct, in that further descriptive terms have been used with the names of the places in the Schedule, wherever it has become necessary to avoid confusion and delimit the specified areas with precision. Another important aspect which has to be kept in view is that wherever it was intended to specify Mauzas or Mahals, such words have been employed. Even villages intended to be excluded have been described with their names as villages. As already observed, therefore if it was intended to include areas beyond and outside the town of Ziarat, necessary words of description like Mauza, Mahal or Sub-Tehsil would have been used alongwith it. Thus, having regard to the fact, that Ziarat has not been described with any other suffix, it cannot be held that it was intended to refer not to the town of Ziarat but to the Sub-Tehsil of Ziarat, which came into existence much later in 1974. It cannot also be construed to have reference to the Mahal or Mauza of Ziarat, as already discussed and, therefore, the conclusion in that the word 'Ziarat' referred to the town Ziarat only. This interpretation is also in consonance with the principle that the words of common usag F should be given their usual, ordinary and natural meaning or signification, according, to approved usage, unless there is some indication to the contrary in the statute itself. In ordinary usage, the word 'Ziarat' by itself does not signify, the Mauza, the Mahal or Sub-Tehsil of Ziarat, except in a particular context of such revenue sub-divisions. Indeed it appears that the Mahal, the Mauza and the Sub-Tehsil have all taken their name as Ziarat from the town of Ziarat which would be the ordinary signification of the word 'Ziarat'.
28. It was contended before us on behalf of the respondents that the aforesaid question of law was not urged in the main Constitutional Petition and could not, therefore, be taken as a ground for review of the judgment passed by the' High Court on the Constitutional Petition. Since, however, we have disposed of point in this judgment, it is not necessary to go into this objection.