' TANZIL-UR-REHMAN, J.--These are 14 petitions bearing Nos.D-141 to D-154 of 1984 under Article 9 of the Provisional Constitution Order, 1981. The facts in substance and the points of law being same and similar in all these petitions, we intend to dispose them of by this common judgment.
2. The facts leading to the above petitions; briefly stated, are that in the year 1979 the petitioners jointly purchased a total area of 131-8 acres of agricultural land situate in deh Buxo Ujan, taluka Garhiyasin, District Shikarpur from respondents Nos. 6 to 11, who were the joint owners thereof having received the said land in satisfaction of their verified claim under the Displaced Persons (Compensation and Rehabilitation) Act, 1958. The said respondents, as alleged, before finalizing the agreement of sale with the petitioners had offered to sell the said land to the sitting tenants to the extent of their individual holding comprising in their tenancy. The tenants, in general, declined to purchase the land probably because they were poor haris and were not in a position to arrange for payment of sale consideration to the said respondents, previous owners. Ultimately, the petitioners under the agreement of sale on 25-5-1979, were put in possession of the land sold to them by the said respondents, after paying substantial advance out of the total consideration and in part performance of the contract. Subsequently a sale deed was registered on 11-8-1980 for Rs, 9, 00,000. Consequential entries in the record of rights were made in favour of the petitioners.
3. Thereafter on 20-5-1981, respondent No,5 in each of the 14 petitions, numbered above, filed an application under Rule 3 of the Sind Pre-emption Rules, 1974 before respondent No,3, the Deputy Commissioner, Shikarpur claiming pre-emption in respect of certain survey numbers or part thereof allegedly under their individual cultivation, as mentioned in the respective petitions. The learned Deputy Commissioner sent the said applications to the Assistant Commissioner Garhiyasin, respondent No,4 to visit the site and conduct inquiry on the spot and submit his report to enable him to decide the case. The learned Assistant Commissioner conducted spot inquiry in a Jalsa Aam meeting on 3-10-1981 at the site after notice to the parties, recorded evidence of witnesses and the parties and submitted his report to Deputy Commissioner, Shikarpur. The Deputy Commissioner passed an order on 30-11-1981 whereby he decided the right of pre-emption in favour of some of the respondents in respect of their entire holding whereas in the case of some other respondents the right of pre-emption was granted in respect of part of their holding in the abovesaid 14 petitions. The petitioners and all those respondents who had been granted their right of pre-emption by the learned Deputy Commissioner only partially filed appeals before the learned Commissioner, Sukkur Division. The learned Commissioner while dismissing the appeals of the petitioners was pleased to grant right of pre-emption in full to the said respondents except one in C.P. No, D-141/84, by his order, dated 15-8-1982, whereby he maintained the order of Deputy Commissioner, granting pre-emption in respect of part of his holding only.
4. The petitioners being aggrieved by the orders of the said respondents Nos. 2 and 3 above named filed a Constitutional Petition in this Bench being C.P. No, D-142 of 1982 which was dismissed on 9-3-1983. The judgment, however, contains an observation regarding filing the revision application before the Member, Board of Revenue Sind for resolution of certain facts. The petitioners, therefore, filed a revision application before the Member, Board of Revenue Sind, respondent No,l. Respondent No,5 in C.P. No,D-141 of 1984 also filed a revision application as his claim to his right of pre-emption had not been accepted in full by both the respondents Nos. 2 and
3. The learned Member, Board of Revenue, respondent No,1 decided both the revision applications by his common order dated 31-7-1984 whereby he was pleased to reject revision applications filed by the petitioners as well as the said respondent No,5. Thereupon, the petitioners have filed the above Constitutional Petitions in this Court.
5. Mr. M.A. Rashid, learned counsel for the petitioners in all the above said petitions has, in the first instance, raised the plea that on the date of hearing before respondent No,1, Mr. Karam Ali Moghul, advocate for the petitioners had filed an application for adjournment on the ground of his sickness.
Learned respondent No,1 did not grant adjournment and proceeded to decide the case. As such, the said order has been passed in violation of the principles of natural justice, equity and good conscience.
6. As regards the contention of non-affording opportunity to the petitioners by the respondent No,1, while hearing revision, there appears to be no reference in the order as to the request for adjournment. Mr. Zaheer Hasan, learned counsel for the tenants-respondents, however, does not deny the making of an application for adjournment. He, however, submits that the attorney of petitioners made his submissions with regard to the case before the learned Member. Board of Revenue. This submission is borne out by the judgment of respondent No,1. Under the circumstances it cannot be said that the principle of natural justice has been violated. Moreover, the Constitutional jurisdiction is intended to be invoked in cases where the orders are passed without lawful authority. Discretionary orders such as rejecting request for adjournment by the Courts below or other functionaries unless found fanciful or arbitrary cannot be interfered with, in Constitutional jurisdiction. For this, reference may be made to Muhammad Umar Beg v. Sultan Mahmood Khan (PLD 1970 SC 139).
7, Learned counsel for the petitioners while referring to Rules 3, 4 and 5 of the Sind Land Commission (Pre-emption) Rules, 1974 next contended that the impugned orders passed by the respondents Nos. 1,2 and 3 have been passed in utter disregard to the provisions of section 28 of the Sind Tenancy Act, 1950. To examine the contention, in some detail, it seems advantageous to reproduce the said provisions of laws in extenso.
' Sind Land Commission (Pre-emption) Rules, 1974:
(1) A tenant, who claims first right of pre-emption in respect of land comprised in his tenancy shall make an application to the Revenue Court of competent jurisdiction exercising the 'powers of Tribunal under the Sind Tenancy Act, 1950 within a period of 12 months commencing from the date of execution' of sale.
(2) Where the owner of land has sold the land before coming into force of these rules the application under sub-rule (1) shall be made within twelve months of such enforcement.
4. On receipt of application under rule 3 the Tribunal shall proceed to hear the case in accordance with the provisions of the Sind Tenancy Act, 1950.
5 ' If the Tribunal is satisfied, after giving due opportunity to the parties concerned of being heard in the matter, that the sale of the land was without the consent of the tenant-applicant, the Tribunal shall grant relief to the tenant applicant by ordering the sale in favour of the tenant-applicant on payment of the sale price."
' Sind Tenancy Act, 1950:
28. (1) A tenant or a landlord may personally or by an agent make an application to Tribunal appointed for the area in which the land in question is situated to decide any dispute between the tenant and the landlord arising out of the application of the provisions of this Act. When applications have been made by both the parties in the same connection, the applications shall be consolidated. No court-fee stamp shall be required be affixed to such applications and no lawyer shall be allowed to represent the parties to such dispute.
' Explanation.--"Agent" shall mean--
(a) in the case of a landlord, a relation or Kamdar or a Munshi of the landlord:
(b) in case of a hari, a relation of the hari, or any other hari of the same deh.
(2) Every application under subsection (1) shall be in writing and shall give full particulars regarding the nature of the dispute, the land in question and the name and address of the party complained against.
(3) On receipt of application mentioned in sub-section. (1), the Tribunal shall fix a date and place for hearing such application and shall issue a notice to the opponent and the applicant to appear before the Tribunal.
(4) The Tribunal shall have the same powers which a Court has under the Code of Civil Procedure 1908, to summon and enforce the attendance of parties and witnesses, to compel the production of documents.
(5) After hearing the parties and their evidence if any, the Tribunal shall pass an award.
8. On perusal of the pre-emption Rules, 1974 it is manifest that rule 3 gives first right of pre-emption to a tenant in respect of land which is under his tenancy. It provides a forum where an application claiming the right of pre-emption is to be made and prescribes a period of limitation to be twelve months commencing from the date of execution of sale. Rule 4 requires the said forum to hear the said application in accordance with the provisions of Sind Tenancy Act, 1950. Rule 5 makes it obligatory to give "due opportunity" to the parties concerned of being heard in the matter when the sale of the land is without the consent of the tenant/applicant. On being so satisfied the Tribunal will order the sale in favour of the tenant-applicant on payment of the "sale price." Needless to say that the Pre-emption Rules 1974 seven in number only, do not lay down any procedure for hearing and deciding the claim of the tenant-applicant. It, however, mentions that the Tribunal shall proceed to hear the case in accordance with the provisions of the Sind Tenancy Act, 1950 which is an example of legislation by reference. For this, we have to advert to the provisions of Sind Tenancy Act. The Tenancy Act has been enacted in order to regulate the rights and liabilities of tenants and their landlords. Chapter I is of a preliminary nature mainly containing definitions. Chapter II, inter alia, provides that a tenant shall be deemed a permanent tenant who has cultivated at least about 4 acres of land for the same landlord for a continuous period of not less than three years and has cultivated such land personally during the aforesaid period, and such tenant will have a permanent right and in case of death the land which he was holding will devolve on denial adult male heirs. The, rights conferred on a permanent tenant by the Act are inalienable and unattachable. The said tenancy rights are, however, liable to termination in certain conditions prescribed under section 13. Chapter III deals with tenants-at-will, Batai, joint possession of the produce, cash rent, Chher and Beggar, duties of the tenants and landlords and also general provisions regarding debt. Chapter IV deals with appointment of Tribunal and settlement of disputes. Section 28 which is relevant for the purpose of these petitions and has been referred to by the learned counsel for the petitioners provides a procedure and powers of Tribunal. Subsection (3) provides that on receipt of application mentioned in subsection (1), the Tribunal shall fix the date and place for hearing and shall issue a notice to the opponent and the applicant to appear before the Tribunal and that the Tribunal shall have the same powers which a Court has under the Code of Civil Procedure, 1908, to summon and enforce the attendance of parties and witnesses, to compel the production of documents and after hearing the parties and their advocates, if any, the Tribunal shall give its decision.
9, It also seems necessary to reproduce relevant part of paragraph No,25 of the Land Reforms Regulations, 1972 (MLR 115): "Paragraph 25--
(b) ...............................................................
(c) ...............................................................
(d) subject to the other provisions of this Regulation, a tenant shall have the first .Right of pre- emption in respect of the land comprised in tenancy.
(4)
(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 commencement, 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.
(7) The Board of Revenue may at any time 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 that no order shall be passed under this sub-paragraph revising or modifying an order affecting any person unless such person has been afforded an opportunity of being heard: ' 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 thirty days from the date of such order.
(8) For the purposes of this paragraph a Collector, a Commissioner and the Board of Revenue shall be deemed to be a Civil Court and shall have all powers of a Civil Court under any law for the time being in force and the final order passed in such suits shall be deemed to be a decree of a Civil Court and shall be executed as such.
(9)
' It may be pointed out that clauses (5) to (9) were added by Act XLVII of 1976.
10. Now reverting to the contention as to the disregard of the provisions of law, referred to above, it seems to carry some weight. Learned counsel for the petitioners submitted that the learned Deputy Commissioner himself has not recorded the evidence of the parties and the witnesses. He has based his findings on the report of the Assistant Commissioner which by its nature and contents seems to be an administrative type of report which cannot form basis of his decision. Learned counsel has placed his reliance on i. Ibrahim Beg v. Mst. Aziman and another (A.I.R. 1936 Oudh 192)
(ii) Ghanaya and others v. Mehtab and others (A.I.R.1934 Lahore 890)(iii) Nizam Din and others v.
Muhammad Iqbal and others (A.I.R.1928 Lah.643) and (iv) Martand Rao v. Malhar Rao (A.I.R.1928 P.C.10).
11. In the first case (AIR 1936 Oudh 192) a Commissioner was appointed by a Court with special direction to make inquiry into a particular fact of a case and submit his report. It was held that the said report "could be proved only by examining the writer of the report as a witness."
12. In the second case (A.I.R.1934 Lah.890) learned counsel relied on two documents one of which was a report submitted by Tehsildar presumably under section 202 Cr.P.C. To the Court of Additional District Magistrate in a criminal case under section 447 Penal Code and the other was a report presented by a local Commissioner to the Court of Subordinate Judge in a civil case between proprietor and tenants of a village. It was observed as under:- "Taylor in his famous commentaries on the Law of Evidence has observed that public documents are entitled to this extraordinary degree of confidence partly because they are required by the law to be kept, partly because their contents are of public interest and notoriety, but principally because they are made under the sanction of an oath of office or at least under that of official duty by accredited agents appointed for that purpose. In the light of these observations I am of opinion that it will not be possible to hold that either of the two reports intended to be relied on by the learned counsel fulfils all the conditions laid down above. The Legislature could never have intended to admit as evidence, without their authenticity being confirmed by the usual test of truth, mere conclusions arrived at by the inquiring or investigating officers from the statements made before them during the course of their inquiry or investigation."
13. In the third case (AIR 1928 Lah.643) appeal was filed late by one day. The question was if the copies of decree and judgment were ready on 15th and 16th December, 1925 or on 23-12-1925, the date on which they were delivered. An inquiry was held and the Additional District Judge relying upon the report held that the copies were ready on 15th/16th. December, 1925. On the question of admissibility of report, it was observed that-- "Section 35, Evidence Act, makes relevant an entry in any public or other official book, register or record stating the fact in issue or relevant fact made by a public servant in the discharge of his official duty or by any other person in the performance of a duty officially enjoined by the law of the country in which such book, register or record is kept. Under this section the entry made on the copy indicating the date on which it was completed is certainly relevant but when an inquiry as to the correctness of such an entry has been started on its accuracy having been challenged by a party and in such enquiry a report is made departmentally by a copyist to his superior officer, such report is wholly outside the purview of S.35 and cannot be referred to as legal evidence without the copyist being cited as witness and called upon to depose to the statements made in the report."
14. In the fourth case (AIR 1928 P.C.10) plaintiff/respondent claimed that zamindari was impartible and that it devolved upon the eldest son. The learned District Judge found against the plaintiff. On appeal the Judicial Commissioner's Court accepted certain opinion in official reports and reversed the judgment. On appeal the Privy Council restored judgment of the District Judge. Following are the relevant observations of the Privy Council:- "After having considered the evidence minutely and elaborately on each of these issues the District Judge held in favour of the defendant on all the four issues and dismissed the plaintiff's suit with costs. On appeal, the method adopted by the appellate Court was different.
' As their Lordships understand the judgment of the Judicial Commissioners, they accepted, as conclusive the opinion which they considered to have been expressed in certain official reports of great authority that the estate in question was in the nature of a raj, and they then proceeded to consider whether the evidence adduced in the case in any way displaced that opinion. This is an inconvenient, if not an erroneous, method and their Lordships consider it necessary at the outset to point out that, though such official reports are valuable and in many cases the best evidence of facts stated therein, opinions therein expressed should not be treated as conclusive in respect of matters requiring judicial determination, however, eminent the authors of such reports may be."
15. It appears that the first report of the Assistant Commissioner was in favour of the petitioners whereas the second report of the Assistant Commissioner (the successor one) was contrary to the first report and against the petitioners. In the face of the two contradictory reports it was illegal for the Deputy Commissioner to pick and choose from one report or the other. The only judicious course for the. Deputy Commissioner/Commissioner was to hold judicial inquiry and record evidence by himself with opportunity of cross-examination of the witnesses to the other side and decide the case judiciously as it involved important rights to property running into lacs of rupees, including the question as to the area under the tenancy of each of the tenants-respondents, the tenure of tenancy the offering of land by the petitioners' predecessor-in-title to the tenants- respondents and their showing inability' to purchase the land implying consent on their part. It seems that learned Deputy Commissioner merely relying on the reports submitted by the Assistant Commissioners and basing his finding thereon acted in a manner which was against the recognized judicial principles and norms established in this country for conducting judicial or even quasi-judicial proceedings. The said reports, as such, were inadmissible in evidence without recording the evidence of the authors of the said two reports which were found by the Deputy Commissioner himself contradictory in several respects and, more particularly, without giving opportunity to the petitioners for cross-examination. It resulted in the negation of the provision of Rule 5 of the said Pre-emption Rules which provided for giving "due opportunity" to the parties concerned. Furthermore, the learned Deputy Commissioner is deemed to be Civil Court as provided in sub-para 8 of paragraph 25 of MLR 115, and as such was bound to pay due regard to the law of evidence. Examining the witnesses by the Mukhtiarkar or the Assistant Commissioner and that too without giving opportunity of cross-examination to the other side is illegal, and the placing of reliance on such evidence recorded by the Deputy Commissioner is, again, not warranted in law, as Deputy Commissioner was acting in judicial capacity "as a Tribunal constituted under the MLR 115 of 1972 and Sind Tenancy Act, 1950 read with Sind Pre-emption Rules, 1974" and not as Deputy Commissioner, a member of the Executive and in his administrative capacity.
16. Learned counsel for the petitioners also submitted that the learned Member failed to consider the affidavit of Wasim Ahmed, attorney of the vendors who was predecessor-in-title in which he had stated among other things that the offer was made by him to the tenants-respondents before making sale of the land to the petitioners. We feel that it was a material piece of evidence produced by the petitioners. By not taking into consideration the said important piece of evidence by the learned respondents Nos.1 and 2, serious injustice has resulted to the petitioners. It is by now settled law that the High Courts in exercise of their Constitutional jurisdiction do not normally interfere with the finding on fact but if the decisions are based in disregard of the provisions of law, or, are based on misreading or insufficient or inadmissible evidence, the superior Courts have interfered with such decisions and findings in order to advance the cause of justice. Reference may be made to (i) Nasreen Fatima v. Principal, Bolan Medical College (PLD 1978 Quetta 17), (ii) Imtiaz Bashir v. Special High Powered Committee (PLD 1978 Quetta 131) and (iii) Haleema Bai v.
Settlement Commissioner (1987 M LD 3215).
17. Learned counsel for the petitioners lastly submitted that the learned Deputy Commissioner has acted contrary to Rule 5 of the Pre-emption Rules, 1974, while ordering the Mukhtiarkar for inquiry into the prevalent price of the land in question. The learned Tribunal, according to the counsel, on being satisfied as to the genuineness of the right of the tenant-applicant is bound to order payment of the "sale-price". Mr. Zahir Hasan, learned counsel, on the other hand, referred to Rule 7 of the Pre-emption Rules, as added to the Preemption Rules, 1974 subsequently which reads as under:- "7. Power of Tribunal to fix sale-price.
(1) In case order is made under rule 5 in favour of the tenant-applicant, the Tribunal shall on being moved by the tenant applicant that the sale price indicated in the sale deed is fraudulently inflated, have power to examine, assess and ad-judicate upon the sale price to be paid by the tenant-applicant to the land owner.
(2) While determining the sale-price, the Tribunal shall take into account, among others, the following factors:-
(i) Average price of private agricultural land sold in the same deh during two years immediately preceding the date of the sale in question.
(ii) If no sale mentioned in clause (i) is made, then average price of private agricultural land sold in the adjoining deh during two years immediately preceding the date of sale in question: It is noticed that the learned Member,Board of Revenue seems to have already taken note of the submission which the counsel for the petitioner has made before us. The learned Member observed:- "In this connection it may be observed that the order with regard to examination, assessment and adjudication upon sale price is a judicial order and as such it should be passed by the Deputy Commissioner after proper application of mind in accordance with the provisions contained in rule 7 and providing opportunity of hearing to the parties if it is found that sale price indicated in the sale deed is fraudulently inflated."
18. Since we are going to remand the case to the Deputy Commissioner, it does not seem proper to pre-empt the question of price at this stage.
19. For the above said reasons, we declare that the impugned orders passed by respondents Nos.1 to 3 are illegal and passed without lawful authority and are, therefore, set aside and the cases are remanded to the learned Deputy Commissioner, as a Tribunal under the Tenancy Act, to hear the cases afresh and record the evidence by himself with right of cross-examination to the other side and not leave the matter to his subordinates.