This order will also dispose of connected Writ Petition No. 1143 of 1981, as its fate is dependant on the decision of the present writ petition and the parties in both the petitions are also the same.
2.Facts necessary for the disposal of this petition, briefly stated, are that respondents Nos. 4 to 11, the landlords having purchased the land in dispute brought a suit for ejectment against the petitioners who were in possession thereof as tenants. This suit was instituted inthe Court of Assistant Collector Ist Grade, Khanewal who after recording the evidence of the parties on 30-12- 1980 and 14-1-1981 decreed the suit, vide order, dated 14-1-1981. Petitioners preferred an appeal and challenged the judgment and decree of the Assistant Collector Ist Grade on the ground, inter alia, that the same were passed after the- expire of a period of 60 days prescribed for deciding the ejectment suit A.C./Collector, Khanewal who heard the petitioners' appeal held that the omission of the lower Court to decide the suit within 60 days was only a procedural mistake. Findings of the trial Court on all the issue were also affirmed and consequently, petitioners' appeal was dismisses by the learned A.C./Collector by order, dated 13-6-1981. Petitioner filed a revision petition before the Additional Commissioner and further revision before the Member, Board of Revenue but without any success The Additional Commissioner dismissed the revision petition on the ground, that proper court-fee was not paid by the petitioners and the learn Member held that second revision before him was not competent. The then filed the present constitutional petition to challenge the impuge orders of their ejectment.
3.It.Appears that the respondents took out execution of the decree of ejectment in pursuance whereof warrants for delivery of possesses were issued. Petitioners then filed the connected Writ Petition No.ll4 of 1981 to challenge the proceedings taken in execution of the aforementioned decree for ejectment.
4. I have heard the learned counsel for the parties at considerable length. It is submitted by the learned counsel for the petitioners the under rule 4(4)(5) of the Punjab Land Reforms (Procedure for Ejectment Suits) Rules, 1977, Assistant Collector Ist Grade is required to dispole of the ejectment suit within 60 days of its institution and in case his failure to do so, case stands transferred, to the Court of the Collector concerned who is to try it in the same manner as in original Court and to decide it within 30 days. Argument of the learn counsel is that the ejectment suit in the instant case was admitted not decided within 60 days of its institution and that being so, t suit automatically stood transferred to the Court of the Collector a .The Assistant Collector was left with no jurisdiction to pass the deer after the expiry of 60 days. Contention of the learned counsel, therefore is that the impugned judgment and decree passed by the Assists Collector Ist Grade was without jurisdiction and the learned Collect took an incorrect view in holding that it was a procedural mistake support of his submission, he relied on Muhammad Rafi etc. v. Addition Commissioner (Rev.) 1981 SCMR 1181 and Muhammad Aslam Additional Commissioner (Rev.) 1983 CLC 915. Cases cited by learned counsel fully support his contention. In the latter case, it v held that on the expiry of the prescribed period, the Tehsildar because entirely functus officio. Consequently, the order of ejectment pas,, by him was void and totally without jurisdiction. As the basic or was without jurisdiction the order made in appeal by the Collector the order made by the Additional Commissioner in revision must a fall down.!
5. Learned counsel appearing for the respondents, on the of hand, relying on Alif Din and another v.
Additional Commissioner (Re 1983 CLC 2051, contends that the fact that the decree for ejectment was passed by the Assistant Collector Ist Grade after the expiry of 60 days did not render it a complete nullity and the default, if any, stood cured as the matter was agitated in appeal before the A. C. / Collector who even otherwise would have heard the case on transfer from the Court of the Assistant Collector on expiry of 60 days. It appears that the aforereferred judgment of the Supreme Court in the case of Muhammad Rafi etc. Was not brought to the notice of the learned Judge who decided the case of Alif Din. Learned counsel for the respondents has also drawn my attention to a case reported as 1981 SCMR 1171, which was referred to in the case of Alif Din.
Question raised in that case that the matter not having been decided within 60 days stood transferred to the next higher authority was disposed of with the observation that "this contention was raised for the first time in constitutional petition. Rectification being possible and having not been availed of by the petitioner at the appropriate stage it cannot be independently made a ground for seeking or obtaining leave to appeal". In the instant case, the petitioners had raised this question in the appeal but the appellate Court took the view that it was only a procedural irregularity.
6. It has next been contended by the learned counsel for the respondents that the provision regarding the disposal of ejectment suit within 60 days was regulatory and not mandatory and, as such, its non-compliance was not fatal. He has relied upon Khana etc. v. Additional Commissioner etc. PLD 1978 Lah. 799. The case cited by the learned counsel is of no help to him because the point involved therein related to the proceedings before the Collector who under the law was required to decide the matter within 30 days but he continued to proceed with the same even after the expiry of 30 days. The view taken was that the proceedings before the Collector could be continued even after the expiry of 30 days as no penalty or consequence was provided for the Collector's failure to decide the case within 30 days. This is, however, not true in the case of the proceedings before the Assistant Collector Ist Grade as it is categorically provided in rule 4(5) that "if the said Court fails to decide a case within the stipulated period of 60 days the case shall stand transferred to the Court of Collector concerned to be tried in the same manner as in the original Court. "
7.Having considered the submissions of the learned counsel for the parties in the light of the relevant rules and the case-law cited at the Bar, I am of the view that on the expiry of 60 days, proceedings before the Assistant Collector Ist Graae stood automatically transferred to the Court of Collector and the impugned order passed by the Assistant Collector thereafter, was wholly without jurisdiction. As the basic order was without jurisdiction, orders passed in appeal and revision based as they are on a void order cannot be sustained. This writ petition is A accordingly allowed and the impugned orders are declared to be without lawful authority and of no legal effect. Application for ejectment filed by the respondents shall be treated as pending before the A .
C. / Collector, Khanewal. Parties are directed to appear, before him on 1-4-1986 and he shall decide the ejectment application within a period of 30 days, from the date both the parties appear before him.
As the impugned orders of ejectment have been set aside, connected Writ Petition No. 1143 of 1981 directed against the execution of those impugned orders is also accepted. There shall be no order as to costs.