' This will dispose of Writ Petitions Nos. 63 to 68 of 1990. By them the petitioners seek, under Article 199 of the Constitution, a declaration that the orders of the Additional Commissioner (Revenue)
Bahawalpur Division, dated 26-11-1989, are without jurisdiction and of no legal effect.
2. The only question requiring determination is a question of jurisdiction. It is, whether the Additional Commissioner (Revenue) was competent, under the Punjab Land Reforms (Procedure for Ejectment Suits) Rules, 1977 (hereinafter to be referred to as the Ejectment Rules) to hear and decide the appeals against the Collector's orders dated 24-8-1989.
3. The petitioners are the landlords. They filed ejectment petitions against the tenants, respondents herein, under the Ejectment Rules in the Revenue Court of an Assistant Collector of the 1st Grade. By rule 4 of the Ejectment Rules, if the Assistant Collector of the 1st Grade "fails to decide the case within the stipulated period of sixty days, the case shall stand transferred to the Court of Collector concerned to be tried in the same manner as in the original Court. The case so transferred shall be disposed of within thirty days and the order passed by the Collector shall be final". The Assistant Collector of the 1st Grade having failed to decide the ejectment petitions within the stipulated period of sixty days, the petitioners' cases stood transferred to the Court of the Collector and the Collector passed the ejectment orders dated 24-8-1989 against the tenants.
4. Rule 7 of the ejectment rules, by its sub-rule (1) provides the remedy of appeal from the order of the Assistant Collector of the 1st Grade. Rule 7, by its sub-rule (2) provides:-- "The Commissioner may at any time, of his own motion or on a petition made in that behalf to him by any aggrieved tenant within fifteen days of the impugned order, call for the record of any case disposed of by or proceedings pending with, any Assistant Collector of the First Grade or a Collector subordinate to him."
' The second proviso to this sub-rule says that "the right to file a revision petition against an order or proceedings shall be available to a tenant and not to a landlord". Sub-rule (3) of rule 7 empowers the Commissioner "to pass such orders as he deems fit after due notice to the parties likely to be affected" if he is satisfied "that it is a fit case to interfere with the proceedings or the order or decree". By sub-rule (4) of rule 7 "the order passed by the Commissioner in revision shall be final".
5. The tenants challenged the ejectment orders, dated 24-8-1989, by means of "appeals" in the Court of "the Additional Commissioner Bahawalpur Division, Bahawalpur exercising power of the Commissioner" and the Additional Commissioner, by his orders dated 26-11-1989 accepted the "appeal" and set aside the orders dated 24-8-1989.
6. As by rule 7, sub-rule (2) of the Ejectment Rules, what lay before the Commissioner was revision, and not appeal, the proceedings before the Additional Commissioner will be described accordingly.
7. The Ejectment Rules, it ought to be mentioned here, were made in exercise of the power conferred by paragraph 6 of the Land Reforms Regulations, 1972 (MLR No, 115) by the Land Commission of the Punjab "for carrying out the purpose of sub-paragraph (1) of paragraph 25 of the Regulations". Paragraph 25 of the 1972 Regulations makes provision for the rights of tenants. Its sub-paragraph (1) prohibits the ejectment of a tenant from his tenancy unless it is established in "Revenue Court" that he has acted contrary to clauses (a), (b), (c) and (d) of that sub-paragraph.
Sub-paragraph (7) of paragraph 25 of the Regulation empowers the Board of Revenue to call for the record of any case or proceedings under that paragraph "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". At the end of paragraph 25 there is an explanation; it says that "in this paragraph Collector, `Commissioner' and 'Board of Revenue' have the meaning assigned to them in the West Pakistan Land Revenue Act, 1%7 (W.P. Act XVII of 1976)".
8. It is also to be noted that paragraph 4 of 1972 Regulations provides, by its sub-paragraph (8), that "where any matter is not provided for in this Regulation, or any difficulty arises in giving effect to the purposes of this Regulation, a Commission may, with the approval or on the direction of the President, make such provisions in respect thereof as it thinks fit, or as may be directed by the Federal Government, and such order shall be deemed to form a part of this Regulation and have effect accordingly". In exercise of that power, the Land Commission of the Punjab, with the approval of the President, by Notification No, DSL-142-73/1628-LC(II), dated 8th May, 1973, made provision providing that "the words 'tenant' and 'Revenue Court' used in paragraph 25 of the said Regulation shall have the same meaning as assigned to these respectively in clauses (26) and (22) of section 4 of the West Pakistan Land Revenue Act, 1967 (W.P. Act XVII of 1967)".
9. In his comments, the Additional Commissioner has said that "the judicial work of the Division has been distributed between the Commissioner and the Additional Commissioner"; that the Board of Revenue, by its letter dated 24-4-1989, on the subject of Revenue Judicial work of the Commissioner, "has very candidly laid down that appeals in Revenue Judicial cases decided by the Deputy Commissioners and Settlement Officers should only be heard and disposed of by the Commissioners themselves, thus saving the orders passed by the Deputy Commissioners as Collector. All other orders passed by Assistant Commissioners can competently be looked into and interfered with by the answering respondent". He has also referred to section 14 of the Punjab Land Revenue Act, 1967, which empowers the Board of Revenue, by written order to distribute in such manner as it deems fit, any business cognizable by any Revenue Officer under its control, and, by like order, withdraw any case pending before any such officer.
10. It is contended for the petitioners that the power to hear a revision petition under rule 7 of the Ejectment Rules vests in the Commissioner and, therefore, the Additional Commissioner was not competent to hear and decide the revision petition of the tenants. Learned counsel for the tenants on the other hand referred to the provisions of sections 8 and 9 of the Punjab Land Revenue Act, 1967, and argued that an Additional Commissioner exercises throughout the Division all or any of the powers and discharges all or any of the duties conferred or imposed on a Commissioner and, therefore, the Additional Commissioner was fully competent to hear and decide the revision petitions. The object of the Notification, dated 28th May, 1973, referred to above, it was further argued, was to clarify that the expression "Revenue Court" has the same meaning as it has in the Punjab Land Revenue Act and as the Revenue officers, including the Commissioner, appointed under the Punjab Land Revenue Act also act as the Revenue Courts under the Punjab Tenancy Act, 1887, the revision petitions were validly filed before the learned Additional Commissioner and decided by him. Learned counsel for the tenants also argued with reference to the explanation at the end of paragraph 25 of the 1972 Regulations that the Additional Commissioner had rightly exercised the powers of the Commissioner.
11. Now the expression "Commissioner" has not been used in sub-paragraph (1) of paragraph 25 of the 1972 Regulations. The expression "Commissioner" occurs in sub-paragraphs (6) and (7) of paragraph 25; sub-paragraph (6) provides that "any person aggrieved by an order passed by a Collector under the preceding sub-paragraph (namely sub-paragraph (5), which provides for suits for enforcing the right of pre-emption) may, within thirty days of such order, present an appeal to Commissioner". Sub-paragraph (7), as has been noticed above, empowers the Board of Revenue to call for the record of any case or proceedings "under this paragraph", that is paragraph 25, for satisfying itself as to the correctness, legality or propriety of an order or proceedings. Then there is the explanation at the end of paragraph 25 which is an instance of inferential legislation; it says that the expression "Commissioner" shall have the meaning assigned to it in the West Pakistan Land Revenue Act, 1967.
12. In the Notification, dated 8th May, 1973, of the Land Commissioner of the Punjab, the expression "Revenue Court", as it occurs in sub-paragraph (1) of paragraph 25, has been given the same meaning as that expression has in subsection (22) of section 4 of the Punjab Land Revenue Act, 1967; in that subsection the expression "Revenue Court" is defined to mean "a Court constituted as such under the law relating to tenancy as in force for the time being". At the date of the enforcement of the Punjab Land Revenue Act, 1967, there was in force the Punjab Tenancy Act, 1887, which Act by its section 77 provides that when a Revenue Officer is exercising jurisdiction with respect to any such suit as is described in subsection (3) thereof or with respect to any appeal or other proceedings arising out of any such suit, he shall be called a Revenue Court and that there shall be the same classes of Revenue Courts as of Revenue Officers "under this Act", and in the absence of any order of the Provincial Government to the contrary, a Revenue Officer of any class having jurisdiction within any local limits "under this Act" shall be a Revenue Court of the same class having jurisdiction within the same local limits. It is obvious that if the intention were that the expression "Revenue Court" in subsection (22) of section 4 of the Punjab Land Revenue Act should mean the Revenue Court under section 77 of the Punjab Tenancy Act, nothing would have been simpler than to say so; in that case the expression "for the time being" would have been unnecessary and would not have been used. In this context, therefore, the expression "for the time being" in subsection (22) of section 4 of the Punjab Land Revenue Act must be held to have been used in its general sense, that is, "that of time indefinite" and to have reference to an indefinite state of facts which will arise in the future and which may (and probably will) vary from time to time.
(See Mian Iftikhar-ud-Din v. Muhammad Sarfraz PLD 1961 SC 585). In that sense, the law relating to tenancy as in force at the relevant time was the law as contained in paragraph 25 of the 1972 Regulations and the Ejectment Rules made thereunder and not the law as contained in the Punjab Tenancy Act, 1887, for paragraph 3 of the 1972 Regulations, provides that "the provisions of this Regulation and any rule or order made thereunder shall have effect notwithstanding anything to the contrary in any other law....".
13. It was said that the intention of the Notification, dated 8th May; 1973, was to provide that the Revenue Officers exercising the powers of Revenue Courts under the Punjab Tenancy Act should also exercise the powers of Revenue Courts under the Regulations and the Ejectment Rules and that that intention should be given effect to. But it has been said, that the expression `intention' is not so much a description as a linguistic convenience. Lord Watson had warned in Solomon v.
Solomon (1897) A.C. 22:-- "Intention of the legislature is a common but very slippery phrase, which popularly understood, may signify anything from intention embodied in positive enactment to speculative opinion as to what the legislature probably would have meant, although there has been an omission to enact it.
In a Court of law, what the legislature intended to be done or not to be done can only be legitimately ascertained from that which it has chosen to enact, either in express words or by reasonable and necessary implication."
Some authorities go so far as to treat. 'legislative intent' as something not real; a mere fiction and an eliminable fiction at that. Justice Holmes of the United States of America did not care what the intention of the legislation was and Mr. Justice Frankferter of the same. Court avoided speaking of the 'legislative intent' and vowed that he would continue to be on his guard against using it. The true rule, if I may say with great respect, was stated by Lord Reid in Black-Clawson International Ltd. v. Papier-Werke (1975) 1 All E.R. 810:-- "We often say that we are looking for the intention of the Parliament, but that is not quite accurate.
We are seeking the meaning of the words which Parliament used. We are seeking not what Parliament meant but the true meaning of what they said."
Or, as Muhammad Munir, C J had put it in Reference by the President PLD 1957 SC (Pak.) 219; "one may intend many things, but when one has expressed his mind in written words, his intention has to be gathered primarily from those words".
14. As has been seen above, the language of the Notification, dated 8th May, 1973, does not lend itself to the meaning sought to be attributed to it and as we are concerned with the "expressed intention" and not with what was in the mind of the maker, the contention is not entitled to succeed.
15. The expression "Commissioner" is not defined in the Punjab Land Revenue Act, 1967. Section 8 of that Act provides, so far as relevant, that for each Division there shall be a Commissioner, who shall be appointed by Government, and who shall exercise throughout the Division, all the powers, and discharge all the duties, of the Commissioner "under the Act". Section 9 of that Act empowers the Government to appoint in any Division an Additional Commissioner who shall exercise throughout the Division all or any of the powers and discharge all or any of the duties conferred or imposed on a Commissioner, "by or under this Act", subject to the general supervision and control of the Commissioner of the Division. The words "under this Act" in section 8 are significant. They mean, and mean only this, that for the purposes of the Punjab Land Revenue Act a person appointed as an Additional Commissioner by the Government can exercise the powers and discharge the duties of the Commissioner. It is plain that by its own force, section 9 of the Punjab Land Revenue Act, 1967, does not empower an Additional Commissioner to exercise the powers of Commissioner under other enactments. It is for this reason that whenever the Legislature intends to vest an Additional Commissioner with the powers of Commissioner, it says so expressly. For instance in Act III of 1986, the expression "Commissioner" has been defined to mean the Chief Officer-in-Charge of the revenue and general administration of a Division and includes an Additional Commissioner of the Division.
16. So, if one were to define the expression "Commissioner" for the purposes of paragraph 25 of the 1972 Regulations, that expression would mean the Commissioner appointed by Government under section 8 of the Punjab Land Revenue Act, 1967. As has been seen above, an Additional Commissioner is appointed under section 9 of the said Act and unless the law says so expressly the expression "Commissioner" would not include an Additional Commissioner. It is, therefore, arguing in a circle to say that the Notification, dated 8th May, 1973, has the effect of vesting the Additional Commissioner with the powers of the Commissioner under the 1972 Regulations or the Ejectment Rules.
17. From what has been said above, it follows inexorably that the power to hear the revision petitions under rule 7 of the Ejectment Rules vest in the Commissioner and that this power could not be exercised by the Additional Commissioner.
18. Three general propositions of law are well-settled and well-recognized: (i) if the power given by the statute is personal to the person designated in the G statute or the statutary law, the power must be exercised by that person Liversidge v. Anderson (1942) AC 206, 265, (ii) in order to enable a person to delegate his powers or functions, there must be an authority express or implied to H delegate and that the action taken by a delegated authority when there is no power to delegate goes to the root of the jurisdiction. (Vine v. National Dock I Labour Board (1957) AC 488 and (iii) judicial authority normally cannot be delegated (Vine's case, referred to above).
19. It has been held above, that the power of revision under the Ejectment Rules vested in the Commissioner; that power was personal to him, and that the Additional Commissioner was not competent to exercise it. It is also equally plain that the power to hear the revision was a judicial power and as it was personal to the Commissioner, neither the Commissioner could delegate that power to the Additional Commissioner, nor could a direction of the Board of Revenue, if any, confer validity upon the exercise of that power by the Additional Commissioner. The principle is that where, under the statute, there is power in the Government or an authority to nominate a person to do a thing, the person nominated cannot delegate the doing of that thing to another; if he does so, the act of that another is without lawful authority. In Muhammad Azeem v. A.C. PLD 1989 SC 266 at 277-278, the Government had in exercise of its powers under the Extradition Act, 1972 designated the District Magistrate, Karachi, to conduct the proceedings but the proceedings were conducted by a Magistrate other than the District Magistrate and the proceedings were, therefore, declared to be without lawful authority and of no legal effect.
20. Learned counsel for the respondents had a technical objection to raise to the competence of these writ petitions. It was that under sub-paragraph (7) of paragraph 25 of the 1972 Regulations the petitioners could avail themselves of the remedy of revision before the Board of Revenue and as they have approached this Court without doing so, these petitions must fail. For one, it is doubtful that sub-paragraph (7) of paragraph 25 could avail the petitioners. Secondly as the Additional Commissioner was not competent to hear and decide the revision petitions, the orders dated 26-11-1989 are without jurisdiction and, therefore, it was not necessary for the petitioners to exhaust their remedies under the 1972 Regulations before approaching this Court. (See All Muhammad v. Hussain Bakhsh PLD 1986 SC 37). Learned counsel for the tenants then referred to the recent case of Qazalbash Wald v. Chief Land Commissioner PLD 1990 SC 99 and stated that some of the landlords who were plaintiffs in the ejectment suits had not only prayed for the dismissal of suits but had also by a written agreement consented not to eject the tenants till Kharif 1984. This contention raises a question of fact and as the effect of the orders in question, dated 26- 11-1989, being declared as orders without lawful authority and of no legal effect, will be that the revision petitions against the ejectment orders of the Collector, dated 24-8-1989, will now be heard by the Commissioner, it will be open to the tenants to raise these questions before the Commissioner.
21. In the result, the petitions are accepted and the orders of the Additional Commissioner (Revenue) dated 26-11-1989 are declared to have been made without lawful authority and to be of no legal effect. The parties are, in the circumstances of the case, left to bear their own costs.