' MUNAWAR AHMAD MIRZA, J.-This petition is directed against order dated 16-:2-1979 passed by Member, Board of Revenue H, Baluchistan, Quetta whereby case has been remanded to respondent No, 13 for determining point of limitation and decision of dispute between the parties on merits in accordance with requirement of Ordinance I of 1968.
2. Brief facts leading to the present petition are that on 18-2-1976, petitioner filed a civil suit for declaration and correction of entries in the Court of Assistant Commissioner with powers of Deputy Commissioner under Ordinance I, 1968 (hereinafter referred to as Ordinance) in respect of 4 pieces of agricultural property situated in Mohal and Mauza Baghiar Tapp Alizai Tehsil Pishin, more particularly described in the plain claim of the petitioners was admitted by respondent Ainud Din way of written statement filed on 29-3-1976 whereas remaining respondent in their respective written statements filed on 16-3-1976 and 17-3-1976 refuted the claim of petitioners. Assistant Commissioner Pishin on 2-4-1976 constituted the tribunal and forwarded the file to it for recording proceedings. Record reveals that case file was received by the Tribunal on 15-4-1976 and first hearing for the attendance of parties was fixed for 20-4-1976. On said date members of Tribunal did not attend, therefore, matter came up for hearing on 17-5-1976 when two witnesses namely Ainud Din and Khudai Rabim were examined. It may be noted that on the same day Tribunal gave finding and forwarded it to Assistant Commissioner in accordance with provisions of the Ordinance. It may be mentioned here that statements of these two witnesses were recorded before Tribunal consisting of Tehsildar-cumPresident and one Member Malik Ali Muhammad.
Learned Assistant Commissioner exercising powers of Deputy. Commissioner heard arguments on 23-9-1976 and fixed the case for announcement of judgment on 9-10-1976. Surprisingly during this time he sent for report of Patwari Halqa which however was received on 6-10.1976 which was also taken into consideration and finally vide judgment dated 9-10-1976 recommendations of Tribunal dated 17-5-1976 were accepted and accordingly suit was decreed in favour of petitioner. Feeling aggrieved respondents on 25-10-1976 filed an appeal (No, 1/70-CP0/6) under section 11 of the Ordinance" before Additional Commissioner Quetta who by his judgment dated 25-5-1978 dismissed the same, and confirmed the decree passed by Trial Court. Against judgments passed by Assistant Commissioner Pishin and Additional Commissioner Quetta referred to above, respondents on 16-6-1978 preferred Revision Petition No, 26-BR/78 before Member, Board of Revenue III which was however accepted on 16-12-1979 and consequently case was ordered to be remanded to the Assistant Commissioner for determining the question of limitation and claim on merits. Operative portion is reproduced :- "In view of the above, 1 set aside the order of learned Additional Commissioner, Quetta Division dated 25-5-1978 and of the Assistant Commissioner Pishin dated 9-10-1976 and remand the case to the lower Court for examining the point of limitation and decide the issue on merits. If the Assistant Commissioner comes to conclusion after taking evidence, that the suit is not time barred, he should refer it to a tribunal and proceed with the case strictly in accordance with the provisions of Ordinance 1 of 1968."
' The petitioners have now challenged this order of Member, Board of Revenue before this Court by filing Constitution Petition on 24-12-1979.
3. Mr. Khalid Malik, learned counsel for the petitioners has contended that there was concurrent finding of fact arrived at by Tribunal, trial Court as well as appellate Court, therefore, Member, Board of Revenue has acted illegally and in excess of authority by setting aside judgments of both the Courts below. (ii) Respondents had not taken the objection about quorum, at the earliest stage, thus in the given circumstances Member, Board of Revenue could not have taken this aspect into consideration, suo mow in the exercise of revisional jurisdiction.
4. On the other hand Haji Sarfaraz Khan, learned counsel for private respondents has contended, that proceedings were recorded by the tribunal in an arbitrary manner, patently in violation of law ; and objection regarding defect of quorum and other improprieties were throughout agitated. He further submitted that Revisional Authority had jurisdiction to pass an order, and it cannot be challenged by way of Constitution Petition merely because any other view was possible and lastly that petition was also not maintainably against remand order.
5. We have carefully considered the arguments advanced by learned counsel for the parties.
Perusal of the statements of two witnesses namely Ainuddin and Khudai Rahim clearly shows that they were recorded in presence of President of the Tribunal and only one member namely Ali Ahmed. The quorum of the Tribunal for conducting the proceedings as laid down in section 7 of "The Ordinance" is mentioned below :- "Section 7. The Tribunal shall not conduct any proceedings unless the President and at least two other members are present". '
Bare perusal of this provision of law shows that there is mandatory probibition for Tribunal to record any proceedings unless specified number of "Tribunal Member alongwith President are available. It is settle position of law that while interpreting "Directory" or "mandatory" nature of the provision Courts are bound apply such construction which in the best possible way can carry into effect, purpose and object of the statute. It is normally understood that, those provision the non compliance whereof would materially affect the proceedings and observance whereof is necessary for valid progress of the matter. Should be deemed as mandatory. In order to ascertain proper construction of the provisions of law relating to quorum it would be profitable to examine discussion of "Craford" in "Statutory Construction" at page 523, para. 263 :- ' Prohibitive or negative words can rarely, if ever, be directory, or, as it has been aptly stated. There is but one way to obey the command "thou shalt not", and that is to completely refrain from doing the forbidden act. And t is is so. Even though the statute provides no penalty for disobedience.
Accordingly, negative, prohibitory and exclusive words or terms are indicative of the legislative intent that the statute is to be mandatory, but their absence does not, of itself conclusively indicate a legislation intention that the statute is permissive, for affirmative words may imply a negative although, of course, their absence is a circumstance to be considered. Neverthe less, where affirmative words are used, if a negative is neither expressed or implied, the statute is merely directory.
' Similarly observation, quoted from Bowditch v. New England Mutual Insurance Comyany (1) as well as in H. M. Vestal Co, v. Robertson (2) by Crawford, in the said book at page 524 and 525 is relevant :-
(i) "Each statute must be judged by itself as a whole, regard being had, not only to its language but to the objects and purposes for which it was enacted. If the statute does not declare a contract made in violation of it to be void, and if it is not necessary to hold the contract void in order to accomplish the purpose of the status the inference is that it was intended to be directory, and not prohibitory of the contract. The statute we are considering, does not, in terms prohibit the corporation from lending money to its officers, or declare that such contracts shall ne void. It is directed to the officers, and by its terms seems intended to furnish Jules to regulate the duty of the officers to the corporation and its members. It does not say that the corporation shall not lend, but that the officer shall not borrow It is designed to forbid officers who are charged with the duty of investing funds of the corporation borrowing from themselves and thus to prevent the risk of the funds being invested by them, under the prompting of self interest, upon insufficient security. In other words, the purpose is to protect the corporation and the policy-holders from the dishonesty or self-interest of the officers. It is intended as a shield to the corporation. To construe it as making the permission of the officers who borrow money in violation of its- provisions void, would defeat the main purpose of its enactment, and would visit the consequences of the unlawful act of the officers, not unon themselves, but upon the corporations for whose protection the statute was made. It would require a plain expression, of the legislative intention to lead us to such a construction."
(ii) "The doctrine was also announced and approved in the case of Diversy v. Smith, supra that an affirmative statute introductive of a
(1) 141 Mass 292 (2) 277 III 425 new law which directs a thing to be done in a certain manner, means that such thing shall not be done in any other manner, even though there be no negative words prohibiting it. That rule is equally applicable in this case ..............Which provides that the certificate of complete organization shall be filed for record in the county where the principal office of the corporation is located before the corporation shall commence business is equivalent to an express prohibition against the authority to do so unless the certificate shall be first filed for record".
In order to correctly appreciate the intent of legislature it would be appropriate to look to the Preamble, which is deemed as key to understand object of legislation. In this behalf reference may be made to Muhammad Zaman Khan v. Government of Pakistan (I).
' Preamble reads as under :- ' Preamble.-Whereas it is necessary to provide for certain areas of West Pakistan special procedure for the adjudication of disputes on certain matters to meet the special requirement of those areas.
' It is thus evident that "The Ordinance" was promulgated to cater for the special requirements of Area, whereby members of the Society fulfilling qualification contain in subsection (2) of section 5 were also to participate in the proceedings necessarily, and in that content their minimum number has been specified in section 7. Therefore keeping in view all factors including underlying intention of the legislature and prohibitive expression of the said provisions of law we are inclined to hold that section 7 of the Ordinance is mandatory. Obviously law requires that unless two private members are present with President, proceedings could not be conducted at all. Consequently any action taken in violation of this provisions, would proceedings automatically quorum non-judice, and as such of no legal effect. We also note with approval observation of the Division Bench of this Court in C. P. No, 14/85 Karim Dad v. Member Board of Revenue and others on this legal aspect and hold that in the instant case, evidence was not recorded validly constituted Forum.
7. Next question relating to recording of evidence under the Ordinance is regulated by section which is as under :- "(1) For the purpose of coming to a finding on the matter .Or issue referred to it, the Tribunal shall give opportunity to the parties to appeal before it and take or hear, in such manner as it may think fit, such evidence as may be adduced on behalf of the parties or as may be called for by the Tribunal : '
' Provided that the Tribunal may, for reasons to be recorded, refuse to take or hear any evidence, which in its opinion is being tendered for the purpose of causing vexation or delay or for defeating the end of justice : ' Provided further that the provisions of section 121 to 126 of the Evidence Act, 1872, shall apply to any proceedings before a Tribunal as they apply to proceedings before a Judge or a Magistrate.
(2) .
(3) . .
(1) PLD 1977 Lab, 735
(4) .
(5) . . .
Thus there is statutory obligation on the Tribunal to allow opportunity to the parties for adducing evidence and grant permission to crosse-examine the witnesses. Consequently Assistant Commissioner has no jurisdiction to evidence on the merits of claim except as regards question of limitation within the purview of subsection (2) of section 4. The whole procedure adopted by the Tribunal and Assistant Commissioner in dealing with this matter was undoubtedly violative of law, arbitrary and contrary to principles of justice. Learned Member, Board. Of Revenue considering these inherent infirmities which were pointed out on behalf of respondent and keeping in view requirements of law rightly declared the order/judgments of both the Courts below to be illegal and improper. We in the light of circumstances discussed in detail in the impugned order observe that said decision is unexceptionable.
8. Next objection of petitioner's counsel that concurrent finding of fact of the forums below could not have been interfered with by learned Member, Board of Revenue in the 'exercise of Revisional power vested in them. In this behalf it may be seen that revisional jurisdiction exercisable by Member, Board of Revenue under the "Ordinance" is almost similar B to the powers generally '
Revisional Authority under other laws. Member, Board of Revenue thus could legitimately examine record and proceeding of subordinate forums and satisfy himself as to the correctness, legality or propriety of any decision or proceedings recorded thereunder. For better appreciation, it will be proper to reproduce relevant provision of law.
Section 12. Revision.-(1) Government may within flinty days of any order passed by the Commissioner on an appeal, either of its own motion or on the application of any party to the dispute, call for and examine the record of any appeal disposed of by the Commissioner, for the purpose of satisfying itself as the correctness, legality or propriety of any decision, decree or order given, passed or made under this Ordinance, or as to the .Regularity of any proceedings thereunder and may, When calling for such record, direct that the execution of the decree or order in question be suspended pending the examination of the record : ' Provided that nothing herein contained shall be deemed to authorise Government to vary or set aside a finding of a Tribunal on a question of fact where such finding has been accepted by the Commissioner, unless it is of opinion that there has been a material irregularity or defect in the proceedings or that the proceedings have been so conducted as to occasion miscarriage of justice.
(2) Government may, after examining arty record called for under subsection (I) and giving the parties an opportunity of being heard, pass such orders as it may think fit."
' Evidently Revisional Authority has vast power to examine legality and propriety of proceedings as well as orders of the subordinate forum whether action in that behalf is initiated on the application of aggrieved party or on its own motion. Therefore, when Revisional Authority is satisfied that in any proceeding subject matter of his consideration have been violated, or any of the forums below have assumed' jurisdiction otherwise not vested in it or proceedings before lower forum have been drawn in flagrant disregard of law or are based on proved mala fides, or have been dealt with in a manner constituting illegality, irregularity impropriety, or likely to cause serious prejudice to any of the parties or is unfair or unlawful Member, Board of Revenue can rectify the same, and thereby to set at naught such illegal actions or decisions. Obviously in the instant case Member, Board of Revenue has enumerated patent illegalities committed by the Tribunal and the Assistant Commissioner in conducting the proceedings which as reflected from said order were specifically agitated by respondents. It may however be observed that even if those defects were not pointed out and were discussed by Revisional Authority on its own motion then too jurisdiction in that behalf was lawfully vested by virtue of sub-clause (2) of section 12 of "The Ordinance. For the above discussion, we are inclined to hold, that contention of learned counsel for petitioners objection to the jurisdiction of Member, Board of Revenue is apparently misconceived. Since Member, Board of Revenue had lawful jurisdictio vested in him to decide the matter, therefore, next objection regarding any defect or error in the decision cannot be reasonably agitated in the exercise of constitutional jurisdiction of this Court. In this behalf we are supported, by wealth of authorities, some of which are however, mentioned, here. Noor Muhammad v. Sarwar Khan and others (1), Malik Muhammad Nawaz v. Muhammad Shujaat Raja and another (2), Yaqoob Ali v. Presiding Officer, Summary Military Court, Karachi (3), Muhammad Sharif and another v. Muhammad Afzal Sohail, etc. (4), Abdur R hman Bajwa v.Sultan and others (5), Jumma Khan and others v. Muhammad Khan and others (6), Zulfiqar Khan Awan v. The Secretary, Industries and Mineral Development, Government of the Punjab Lahore and 8 others (7), Wali Muhammad and others v. Sakhi quha nmad and others (8), Muhammad Hussain Munir v. Sikandar and others (9). Additionally, it is observed that order of remand does not finally determine claim or rights of the parties in a proceeding. In fact on account of this situation another opportunity is always available to any party who may feel aggrieved from final determination of claim in suit. Such order mainly rectifies illegalities and irregularities committed by subordinate forum as already discussed above. As a consequence of remand the forum to which case is sent for fresh decision, is always free to pass judgment on the available fact uninfluenced from any extraneous circumsfances. Thus against such fresh decision alternate remedy by way of regular appeal or revision is again available to the aggrieved party therefore in this view of the matter order of remand would not be amenable to the writ jurisdiction unless it is exfacie perverse, or order passed in the exercise of jurisdiction not vested in such forum or is otherwise void. In this behalf we are also supported by the observation in case Mst. Kaniz Fatima and others v. Member, Board of Revenue Punjab (10) and Ramzan v.
Rehabilitation Commissioner Sargodha and others (19. Present petition is not maintainable on this score as well.
(1) PLD 1985 SC 131 (3) PLD 1985 (?) 243 (5) PLD 1981 SC 522 (7) 1974 SCMR 530 (9) PLD 1974 SC 139
(11) PLD 1963 Lah. 461
(2) PLD 1985 Lah. 248 (4) PLD 1981 SC 246 (6) 1973 SC MR 289 (8) PLD 1974 SC 106 (10) PLD 1973 Lab. 495 For the foregoing reasons, we are inclined to hold that the petition is not competent, same is accordingly ordered to be dismissed.
' This petition was dismissed by our short order dated 2-10-1985 and above are reasons for the same.