ZAFFAR HUSSAIN MIRZA, J.--Petitioners are aggrieved by the judgment dated ?7th July, 1986, whereby a Division Bench of the Baluchistan High Court dismissed their constitutional petition.
2. Briefly the facts are that respondents 4 to 10 filed a suit on 6th June, 1981, against the petitioners in the Court of Assistant Commissioner/ Assistant Collector, Sub-Division Dhadar, under the provisions of the Baluchistan Tenancy Ordinance, 1978 (hereinafter called the Ordinance), for ejectment of the petitioners from the land in dispute situated in Mouza Sibri, Tehsil Dhadar, District Karachi According to the petitioners six of the petitioners were not duly served with the summons of the suit, whereas four of the petitioners were served and filed a written statement repudiating the claim of the aforesaid respondents and challenging the maintainability of the suit. By order dated 26th January, 1984, the learned Assistant Commissioner, ex parte decreed the suit of the said respondents.
3. The petitioners being aggrieved, challenged the decree passed against them in an appeal before the Deputy Commissioner/ Collector, District Karachi, who vide order dated 10th June, 1984, dismissed the appeal as being barred by time. The petitioner filed a further appeal in the Court of Commissioner. Sibi Division, which was accepted vide order dated 7th April, 1985, Lind the orders passed by the subordinate officers were set aside and the suit was remanded to the first Court for fresh trial and decision in accordance with law.
4. Respondents 4 to 10 then preferred a revision in the Court of Member Board of Revenue, Baluchistan, respondent No-1 herein, which was allowed by order dated 16th March, 1986, on the ground that the second appeal before the learned Commissioner filed by the petitioners was not competent in law.
5. Petitioners then challenged the aforesaid order dated 16 March. 1986, in a constitutional petition which was dismissed by Division Bench of the Baluchistan High Court vide judgment date 27th July, 1986. Hence this petition for leave to appeal.
6. The ground on which the learned Member, Board of Revenue reversed the order of the Commissioner was that a second appeal was not competent in view of section 67(c) proviso (ii) of the Ordinance, which provides that when an original order or decree is confirmed on First appeal a farther appeal shall hot lie. In the High Court the petitioners supported the order of the Commissioner on the argument that although second appeal as such was not competent in this case, the Commissioner had otherwise ample power to pass the order under section 71, subsection
(2) read with subsection (4) of the Ordinance and, therefore, it cannot be said to have been passed without jurisdiction. The argument, however, did not find favour with the learned Judges of the Division Bench mainly for the reason that the Commissioner had no power to pass final order even in exercise of revisional jurisdiction under section 71 but was required to refer the - case for orders of the Board of Revenue. In order to appreciate the contention of the learned counsel, section 71 is reproduced herein under:- "Section 71. Power to call for, examine and revise proceedings of Revenue Officers and Revenue Court.-- (1) The Board of Revenue may at any time call for the record of any case pending before, or disposed of by, any Revenue Officer or Revenue Court subordinate to him.
(2) A Commissioner or Collector may call for the record of any case pending before, or disposed of by, any Revenue Officer or Revenue Court under his control.
(3) If in any case in which a Commissioner or Collector has called for a record he is of opinion that the proceedings taken or the order or decree made should be modified or reversed, he shall submit the record with his opinion on the case for the orders of the Board of Revenue.
(4) If, after examining a record for under subsection (1), or subsection (2) or submitted under subsection (3), the Board of Revenue or the Commissioner, as the case may be, is of opinion that it is expedient to interfere with the proceedings or the order or decree, it or he, as the case may be, shall pass an order accordingly.
(5) If, after examining the record, the Board of Revenue is of 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 time being in force, interfere with proceedings or an order or decree of a Civil Court, it shall fix a day of hearing the case, and may, on that or any subsequent day to which it may adjourn the hearing or which he may appoint in this behalf, pass such order as it thinks fit in the case.
(6)
On a careful reading of the various subsections of section 71, it appears to us that there is a clash between subsections (3) and (4).
The learned Judges of the High Court seem to have taken the view that the Commissioner has no power to pass orders in cases in which he has called for the record of any case from the subordinate Revenue officer or Revenue Court, in view of the provisions of subsection (3) which seems to require the Commissioner to record his opinion and submit the same for orders of the Board of Revenue. However, the plain reading of subsection (4) gives a contrary result, which seems to provide that after examining the record called for by the Commissioner under subsection (2), if he is of the opinion that it is expedient to interfere with the proceedings or the order or decree, he shall pass an order accordingly. The words "it or he" in this subsection take the matter beyond any ambiguity that both the Board of Revenue as well as the Commissioner can pass orders there under. We, are, therefore, of the opinion that an authoritative interpretation of the provisions ofth section 71 in the aforesaid context requires to be made by this Court. The submission of the petitioner that although they had purported to file an appeal before the Commissioner, any order passed by him would be immune from attack as he otherwise possess the same power under section 71 of the Ordinance receives support from a judgment of this Court in Kala v. Board of Revenue and another PLD 1985 SC 208, which lays down that non-mention of any provision of law is a mere matter of technicality and it is the substance of the prayer contained in the proceedings which determines the validity of the order so that if the repository of any statutory powers acts within the ambit of that power, the order would be perfectly valid. In another case of this Court Pir Muhammad Farid Jan v. Colonisation Officer Sukkur Barrege PLD 1965 SC 399 it was laid down that "even if, therefore, the intermediate appellate links were weak, the final order in revision, referable as it was to section 211 (of the Sind Land Revenue Code, 1879), could not be successfully assailed as illegal". Therefore, we find force in the contentions of the petitioners on both points, namely, that the Commissioner was competent to pass final order in the case and even if the appeal of the petitioner was not competent as such the Commissioner's order was referable to his power under section 71 of the Ordinance and as such was not illegal.
7. The aforesaid questions of law are of general public importance regarding the interpretation of the provisions of the Baluchistan Tenancy Act, 1979, which require consideration. Leave is accordingly granted. Security Rs.1,000. Stay already granted by this Court dated 13th January, 1987, shall continue.