' FAIZ MUHAMMAD KHAN, J.-Land measuring 2 Kanals and 51 Sarsais, out of Khasra Nos. 998 and 959, situated in village Hawara, Tehsil Charsadda, District Peshawar, was sold by Obedullah in favour of Duraney son of sultan respondent No, 1 herein. The sale was pre-empted by Wazir Muhammad, son of Abdullah Jan, petitioner herein on the basis of tenancy. The pre-emptor also disputed the sale consideration entered in the sale-deed. The suit was filed in the Court of Collector having jurisdiction in the area, where it was contested by the vendee-defendant, who denied the tenancy of the plaintiff as well. The learned Collector, after recording such evidence as the parties wished to produce, holding that the pre-emptor was a tenant of the suit land, decreed the suit in favour of the plaintiff. The defendant (Durraney) went up in appeal to the Court of the learned Additional Commissioner, who dismissed the same. The defendant (Duraney) took the matter to the Board of Revenue in revision and the learned Senior Member, Board of Revenue, holding that although the revision petition filed with a delay of 27 days but to meet the ends of justice, examined the correctness, legality and propriety of the orders of the Courts below and found that the plaintiff- respondent before him was not the tenant of the suit land and instead was the lessee or mortgagee thereof. He accordingly, vide his order, dated 10-8-1980, accepted the revision petition and set aside the decrees of the lower Courts and dismissed the suit instituted by the pre-emptor.
The plaintiff-pre-emptor was aggrieved by the order passed in revision and he, therefore, filed this constitutional petition calling in question the order, dated 10-8-1980 made by the Senior Member, Board of Revenue.
2. Syed Rafaqat Ali Shah, Advocate appeared on behalf of the petitioner and Z. Mahfooz Khan, Advocate appeared on behalf of respondent No,
1. The arguments of the learned counsel were heard.
3. The first contention of the learned counsel for the petitioner was that the impugned order of the Board of Revenue being in clear violation of the second proviso to sub-paragraph (7) of paragraph 25 of the Land Reforms Regulation, 1972 (hereinafter referred to as the Regulation) and rule 12 of the N.-W. F. P. Land Reforms Rules, 1972 (hereinafter referred to as the Rules) was illegal and void and was, therefore, a nullity in the eye of law. Such an order, according to the learned counsel, can be declared as such by the High Court in its constitutional jurisdiction. The learned counsel contended that the law and the rule already referred to clearly provide that where an application of any aggrieved person was made after the expiration of 30 days from the date of the order complained against, the Board of Revenue shall not call for the record of the case for the purpose of satisfying itself as to the correction, legality or propriety of an order made by the Commissioner or the Collector. He contended that in this case the Board of Revenue initiated action of summoning the record on the basis of the revision petition filed by respondent No, 1, which according to the impugned orders itself was filed after a delay of 27 days. According to the learned counsel, the Board of Revenue was not competent to further examine the matter when the revision petition was beyond time, especially when a preliminary objection to that effect was taken before the Board of Revenue. By deciding the matter on merits, the learned counsel contended, the Board of Revenue violated mandatory provision of law and thus committed illegality which rendered the impugned order as without lawful authority. In support of his arguments the learned counsel relied on PLD 1976 Pesh.
66.
4. The learned counsel for respondent No, 1, however, submitted that under sub-paragraph (7) of paragraph 25 of the Regulation the Board of Revenue was competent to call for the record 'of its own motion or otherwise'. In other words, he submitted, since the Board of Revenue could call for the record of its own motion, the action taken and the order made by the Board of Revenue, though not so expressed, would be deemed to have been taken and made in exercise of suo motu powers which admitted of no limitation, neither the one contained in the second proviso to this sub- paragraph. The learned counsel further contended that the authority relied upon by the learned counsel for the petitioner was in respect of paragraph 29 of the Regulation and has no application to a case under sub-paragraph (7) of paragraph 25 of the Regulation.
5. It is true that sub-paragraph (7) of paragraph 25 of the Regulation provides for the exercise by the Board of Revenue of suo motu powers in appropriate cases, and it also provides for the exercise of powers on an application made by the aggrieved person. But sub-paragraph (7) is further controlled by the two provisos, the second of which is relevant and is in the following words : - "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 30 days from the date of such order."
' As to the function which a proviso performs in an enactment, we would quote with advantage the following observations of the Full Bench in Commissioner of Income-tax v. Philips Holzman A. G.
Ammeejee Valeejee Sons (1): "The proper function of proviso is that it qualifies the generality of the main enactment by providing an exception and taking out as it
(1) PLD 1968 Kar. 95 ' were, from the main enactment a portion which, but for the proviso, would fall within the main enactment. There may be cases in which the language of the statute is so express and clear that a proviso may be construed as a substantive clause."
Reading the provisions of sub-paragraph (7) in the light of second proviso referred to above there cannot be two opinions that where the Board of Revenue is moved to take action on the application of an aggrieved person then the record of any case or proceedings shall not b c called for under this sub-paragraph if the application is made by the aggrieved person after the expiration of 30 days from the date of the last order complained against. Any interpretation to the effect that even though the application made by an aggrieved person may be barred by time yet the Board of Revenue, having summoned the record on its basis, would be competent to proceed further and decide the matter under its suo motu powers would only be possible by doing violence to the express language employed in the second proviso aforesaid. We are, therefore, of the view that once the Board of Revenue initiates action under subparagraph (7) of paragraph 25 of the Regulation upon an application made by an aggrieved person and if such application is found to be barred by time and the condonation of delay is neither asked for nor allowed, then the Board of Revenue cannot sit in suo motu jurisdiction and determine the matter on merits in order to help a person who lost his remedy by laches. In our view, second proviso was inserted in the enactment with this intention. Where in such a situation the Board of Revenue takes suo motu action, then it would not only prejudice the cause of the other party but would also deprive him of the right which accrued to him by the neglect of his adversary. Further, it would also have the effect of making inoperative the second proviso placed in the enactment. Such an effect could not have been intended by the law-maker. We have noticed from the record that the Board of Revenue in its order, dated 8-7-1980 called for the record upon presentation of revision petition by respondent No, 1 herein. The revision petition was found by the Board of Revenue to be barred by 27 days. No request or application for condonation of delay was made, nor was such delay condoned by the Board of Revenue. Such being the case, and when the application was barred by time, the record of the case, according to the second proviso to sub-paragraph (7), which qualified the main provision contained in sub-paragraph (7), could not E have been summoned by the Board of Revenue, and the case could not have been decided by it. We are fortified in this view by a Division Bench authority of this Court in Muhammad Aslam Khan and others' case (1). We find no substance in the arguments of the learned counsel for respondent No, 1 that this authority being under paragraph 29 of the Regulation was inapplicable, because in our view paragraph 25(7) and paragraph 29 of the Regulation in relevant context are based on same principle.
6. This, however, is not the end of the matter. While sitting in writ jurisdiction we have further to see whether or not by the impugned order an illegality committed by the forums below has been set at right. If we F are satisfied that by the impugned order, though illegal, an illegality committed by the forums below has been corrected and justice has been done, then we would not, in our writ jurisdiction, interfere in such an order. This takes us to the merits of the impugned order.
7. The petitioner has placed on this record a document (Annexure-A) to show that he had, on its basis, become tenant of the disputed land. The petitioner had claimed his superior right of pre- emption on the basis of tenancy. This document was also relied upon by him before the Collector.
The learned counsel for the petitioner contended that this document had made the petitioner the tenant of the disputed land, the possession whereof was given to him after the execution of this document. The learned counsel for respondent No, 1 controverted this stand. We have carefully gone through this document and in our view it did not created tenancy in the petitioner but instead made him mortgagee of the rights of the land owner, which included the right to cultivate the land.
The words used in this document are which clearly mean that the land owner's right to cultivate the land was mortgaged with the petitioner for the mortgage charge of Rs, 700. The possession of 3 kanals of land was also delivered to him in pursuance of this document. It was further stipulated in this document that the mortgagor would be entitled to take back possession of the land only when he paid back the entire mortgage amount to the mortgagee. The mortgagee was, therefore, rejectable in accordance with the manner stipulated in the document and the law governing it and not as a tenant under the tenancy law. The mere fact that the mortgagee had agreed to pay half share of Batai to the mortgagor would not convert the transaction of mortgage into that of a tenancy. Such an arrangement was permissible in the case of an usufructuary mortgage. For all intents and purposes, therefore, the transaction through Annexure "A" to the writ petition created in favour of the petitioner a mortgage of the land owner's right to cultivate the land and not the tenancy, as alleged by him. The view taken by the Board of Revenue in this regard was, therefore, correct. The petitioner being the mortgagee and not the tenant, of the disputed land had on that basis no right to file a pre-emption suit. By the impugned order the Board of Revenue rightly corrected the illegality committed by the forums below and rightly dismissed the pre-emption suit filed by the petitioner herein. Since proper justice has been done by the Board of Revenue, we would, therefore, not interfere in the impugned order in our discretionary jurisdiction. This writ petition is accordingly dismissed, but in the circumstances of the case, we would make no order as to costs.
(1) PLD 1976 Pesh. 66