1. NASIM HASAN SHAH, J.-- This order will dispose of the above --noted five appeals as the question involved in all these appeals is the same.
2. The question is whether the Board of Revenue can revise the order of the Commissioner passed by him in his revisional jurisdiction? The Division Bench of the Peshawar High Court answered this question in the negative holding that as the Board of Revenue and the Commis--sioner has concurrent revisional jurisdiction under section 56 of the N.-W.F.P. Tenancy Act, 1950, the Commissioner having exercised the said revisional powers the Board of Revenue could not entertain second revision against such an order.
3. Section 56 of the N.-W.F.P. Tenancy Act, 1950 to the extent relevant reads as under:- .(1) The Board of Revenue or the Commissioner may at any the call for the record of any case pending before, or disposed of by, any Revenue Officer or Revenue Court subordinate to it or him.
4. (2)
5. (3)
6. (4)
(5) If, after examining the record, the board of Revenue or the Commission is of the 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 the being in force, interfere with proceedings or an order or decree of a civil Court, he shall fix a day for hearing the case, and may, on that or any subsequent day to which he may adjourn the hearing _ or which he may appoint in this behalf, pass such order as he thinks fit in the case.
7. (6)
8. (Underlining is ours)
9. After hearing the learned counsel for both the parties in all the appeals before us we are inclined to agree with the conclusion of the learned Judges of the High Court that once the Commissioner has exercised the revisional jurisdiction conferred upon him under section 56 of the N.-W.F.P. Tenancy Act the Board of Revenue would not be competent to exercise the same powers with respect to the same case under the said section.
10. However, Mr. Said Baig, learned counsel for the appellants, pointed out that in these cases the Board of Revenue had, in fact, acted under sub-para. (7) of Para, 25 of Martial Law Regulation 115 (of 1972) and not under section 56 of the Act. He pointed out that both the Collector and the Commissioner in their orders had taken note of the fact that the tenants could only be ejected on fulfilment of the provisions of Martial Law Regulation 115 of 1972. Hence to determine) whether the Board of Revenue could interfere ire the cases they provisions of Martial Law Regulation 115 and not those embodied ink section 56 of the Act would be relevant.
11. We are inclined to agree.
12. It is noteworthy that Para. 3 of the Regulation of 1972 (as amended upto date) overrides all, other laws. It reads:- (3), "Regulation to override other laws etc.-- The provisions of this Regulation, and any rule or order made thereunder, shall have effect notwithstanding anything to the contrary in any other law or any order or decree of a Court or Tribunal or other authority, or in any rule of custom or usage, or in any contract, instrument, deed or other document."
13. The paragraph dealing with the rights of tenants etc. Namely, Para.25 of the Regulation provides, to the extent relevant, as under:- "25. Rights of tenants.-- Subject to the provisions of this Regulation, a tenant shall not be ejected from the tenancy unless it is established in 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 tenancy 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) .....................................................
(3) .....................................................
(4) ......................................................
14. (5)All the 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 commence--ment, 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, present an appeal to Commissioner.
15. (7)"The Board of Revenue may at any the 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 ------------------------------------."
16. Sub-para. (7) of para.25, reproduced above, clearly empowers the Board, of Revenue to call for the record of any case in which the Collector or Commissioner has-passed the order for purpose of satisfying itself as to the correctness, legality or propriety of such proceedings or order and to pass such orders in relation thereto as it thinks fit.
17. Mr. M.Z. Mehfooz Khan, appearing for the respondents in some of these appeals no doubt drew our attention to the N.-W.F.P. Land Reforms (Procedure for Ejectment Suits) Rules, 1975 and especially to rule 7 thereof which deals with appeals, review and revisions and lays down:- "7. Appeal, Review and Revision.--The provisions contained in sections 52, 53, 54, 55 and 56 o the North-West Frontier Province Tenancy Act, 1950 (N.-W.F.P. Act XXV of 1950) regarding appeal, review, revision and period of limitation shall apply mutatis mutandis to the orders passed under these rules."
18. And contended that as even under the rules framed under the Regulation in the relevant regard the provisions of section 56, inter alia, of the N.-W.F.P. Tenancy Act were to govern the matter of appeals and revisions, the decision of the High Court which was based on a correct interpretation of section 56, did not require any interference.
19. This plea, however, cannot be accepted. Para.3 of Martial Law Regulation 115, as already noted, has overriding effect and, therefore, notwithstanding the provisions of the ejectment rules, reproduced above, a revision before the Board of Revenue would still be competent under sub-para. (7) of para. 25 of the aforesaid Martial Law Regulation. In a recent case LUCAS alias LUCI and others v. S.M.
20. Nasim, Member (Revenue) Board of Revenue Punjab, Lahore and another PLD 1984 SC 227 this Court has also considered this question and, inter alia, observed:- "It is not necessary to examine the reasoning of the learned Judge because even if it be assumed that under any rule, a final approach through revision before Board of Revenue in matters dealt with under para. 25 is prohibited or not prodded or the rule is silent in that behalf, the provisions in sub-para. (7) of para. 25 make it amply clear that the Board of Revenue can at any the of its own motion or otherwise call for the records of any case or proceedings, "Under this paragraph", which is pending or in which a Collector or Commissioner has passed an order for purpose of satisfying itself regarding correctness, legality or propriety of such proceedings or order."
21. Thus, even if the ejectment rules framed under Martial Law Regulation 115, which make section 56 of the N.-W.F.P. Tenancy Act applicable to revisions etc. Prohibit a second revision to the Board of Revenue, the Board of Revenue could still, in accordance with the provisions of sub-para, (7) of para . 25 of Martial Law Regulation 115 which has overriding effect call for the record of any case or proceedings under the said paragraph to scrutinise any order passed by a Collector or a Commissioner and proceed to pas any order in relation thereto.
22. The result is that all these appeals must succeed. The orders passed by the High Court and impugned in these appeals are set aside and those passed by the Board of Revenue are found to be valid and are restored.
23. The appeals succeed but the parties are left to bear their own costs.