' FAZAL KARIM, J.---This will dispose of R.S.A. No, 106/89 and W.P. No,3049/81.
' The facts giving rise to them can be shortly stated as follows. The land in suit was sold by the vendor, Rehmat, to the vendee-defendant, Lal Din, on 31-10-1974. Four suits to pre-empt the sale were instituted in the Civil Court but for the purposes of these matters, only two are relevant. One was instituted on 29-10-1975 by Allah Dad, predecessor-in-interest of Mukhtar Ahmed etc., appellants in the appeal and petitioners in the writ petition, and the other by Noor Muhammad, respondent, on 30-10-1975. While the claim of Allah Dad was founded upon his being an heir of the vendor and owner in the estate, that of Noor Muhammad was based upon M.L.R. No,115 of 1972, paragraph 25, namely, that he was a tenant of the land in suit. As required by Section 28 of the Punjab Pre-emption Act, 1913, Noor Muhammad was made a party to the suit of Allah Dad. Before the learned Civil Judge, a question arose whether the suit of Noor Muhammad, based as it was upon the provisions of M.L.R. 115 of 1972, lay in the Civil Court or in the Revenue Court. By his judgment dated 20-4-1976, the learned Civil Judge held that "right of a tenant to pre-empt land comprised in his tenancy is a creation of special statute, which envisages special procedure and rules for the implementation of those rights" and that Noor Muhammad must go to the Collector if the wishes to pre-empt the sale. He, therefore, returned the plaint for being presented before the Collector. It appears that Noor Muhammad was not happy with the learned Civil Judge's order dated 20-4-1976 and he filed C.R. No,615/76 in this Court. In that revision petition Allah Dad was impleaded as a respondent. At the same time, he presented the plaint of his suit before the Collector on 2-11-1976. On 7-12-1976, the vendee-defendant, Lal Din, admitted the claim of Noor Muhammad and the Collector decreed Noor Muhammad's suit.
3. It should be noted here that while admitting C.R. No,615/76, this Court stayed the proceedings of the civil suit of Allah Dad. It is also interesting to note that though Noor Muhammad had presented the plaint of his suit before the Collector on 2-11-1976 and that suit was decreed on 7-12-1976, yet C.R. No,615/76 had remained pending in this Court till 22-3-1978 when on the statement of Noon, Muhammad's counsel that he did not wish to press the civil revision, it was dismissed with costs.
4. Allah Dad died on 17-4-1977. His legal representatives, Mukhtar Ahmed and Rashida Begum, preferred an appeal before the Additional Commissioner Revenue Lahore Division against the Collector's decree dated 7-12-1976. Though the arguments addressed by the parties' counsel before the learned Additional Commissioner were wide ranging, yet the learned Additional Commissioner dismissed the appeal by his order dated 10-1-1979 on the ground of limitation. In so doing, the learned Additional Commissioner observed:-- "It stands proved that the father of the appellants in the first instance was legally supposed to have the knowledge of the order passed in revision in the High Court by Mr. Justice Zakiuddin Pal on 22- 6-1976. It was because of the recepit of this interim injunction that the proceedings of his case pending in the Civil Court were ordered to be stayed. Similarly Allah Dad, father of the appellants, had the knowledge about the judgment and decree dated 7-12-1976 on 19-2-1977 when the copy of the same was filed in the Court of the Naib-Tehsildar wherein Allah Dad had appeared in connection with his request for correction in the entries of the Khasra Girdawri relating to Kharif 1971.
On subsequent numerous adjournments he must have acquired the knowledge and as such for one month and 29 days, he kept quiet and failed to challenge the said judgment and order of the A.C/Collector through the filing of an appeal. Similarly the appellants themselves from 30-4-1977 to 25-10-1977 had the knowledge about the passing of the said judgment and decree, but the delay thus caused could not be satisfactorily explained by the appellants. The appellants and for that matter their father had rightly not been impleaded as necessary parties by the respondent for the relevant provisions of section 28 of the Punjab Pre-emption Act are not at all applicable to the pre- emption suits filed by tenants. Therefore, they cannot be deemed to have suffered any legal grievance."
5. The learned Additional Commissioner was also of the opinion that the appeal of Mukhtar Ahmed and Mst. Rashidah Begum "is not sufficiently stamped".
6. Mukhtar Ahmed and Mst. Rashida Begum then approached the Board of Revenue in its revisional jurisdiction under section 164 of the Punjab Land Revenue Act, 1967 but their revision was dismissed by the judgment of a learned Member, Board of Revenue dated 16-4-1978, on the ground that "the entries of the Register Khasra Girdawri can only be challenged either by the landlord or by a person who claims to be the tenant of the land in dispute. The petitioner does not claim to be the tenant.
He claims to be interested in the land as a prospective pre-emptor".
7. It ought to be mentioned here that the writ petition was originally filed on 27-10-1979. It was returned with some objections and was re-filed on 15-6-1981.
8. Allah Dad's suit in the Civil Court was decreed on 4-2-1985 with the condition that he would pay Rs,56,00,000 after deducting the 1/5 of the pre-emption money within a period of six months with a further direction that the decree would "be operative and executable only if pre-emption decree dated 7th December, 1976 earlier passed by Collector, Gujranwala in favour of defendant No,3 in regard to land in suit is subsequently set aside by Court of competent jurisdiction at any stage. In case, the said decree remained tact the plaintiff will be entitled to refund of sale amount deposited by him".
9. Aggrieved by the learned Civil Judge's direction that the decree would be operative only if the Collector's decree dated 7-12-1976 was set aside, Mukhtar Ahmed and Mst. Rashida Begum preferred an appeal in this Court on 26-5-1985, for the valuation of the suit was Rs,50,000 and at that date an appeal lay to this Court. During the pendency of the appeal, the law was amended and the appeal was sent to the District Court for its decision. The appeal was heard by the learned Additional District Judge, Gujranwala, who, by his judgment dated 15-5-1988, dismissed it.
10. Hence this second appeal by Mukhtar Ahmed and Mst. Rashida Begum.
11. As by their writ petition, Mukhtar Ahmed and Mst. Rashida Begum invite this Court to hold that the Collector's decree 7-12-1976, the Additional Commissioner's order dated 10-1-1979 and the learned Member, Board of Revenue's order dated 21-1-1979 were made without lawful authority and are of no legal effect, it is appropriate to first deal with the writ petition.
12. It is common ground between the parties that though Noor Muhammad was made a party to Allah Dad's suit in the Civil Court yet Allah Dad was not made a party, the Collector's decree dated 7-12-1976 was passed in the absence of and without affording hearing to Allah Dad. The principal question requiring determination turns upon the provisions of section 28 of the Punjab Pre-emption Act, 1913. That section reads:-- "When more suits than one arising out of the same sale or foreclosure are pending, the plaintiff in each suit shall be joined, as defendant in each of the other suits, and in deciding the suits the Court shall in each decree state the order in which each claimant is entitled to exercise his right."
' The question whether a suit by a tenant in exercise of his right under paragraph 25 (3) (d) of M.L.R.
115/72 is a suit to enforce a right of pre-emption under the provisions of the Punjab Pre-emption Act, 1913 was settled in Muhammad Khan v. Abdul Khaliq Khan PLD 1981 SC 153. It was held:-- "The real import of para. 25(3) (d) is that (i) in the areas where and (ii) the agricultural land and
(iii) transaction thereof, about which, a right of pre-emption is otherwise basically available, there and about that land and transaction, a tenant shall have the first right of pre-emption with regard to the land constituted in his tenancy. The question therefore whether the territory, the agricultural land, and the transaction involved in a given case is such wherein or about which a right of pre- emption exists or not, so far as relevant for the present case, is to be determined first under the Punjab Pre-emption Act of 1913 because para. 25(3)(d) does not purport to itself determine these matters. In this way it is thus clear that when a suit is filed by a tenant claiming a first right of pre- emption he is really enforcing a right of pre-emption basically granted by and under the Punjab Pre-emption Act in general in the locality, about the land and regarding transaction involved though preference is being bestowed on him by para. 26(3)(d) of Martial Law Regulation 115 of 1972.
Such a suit from that point of view can be considered as a suit 'to enforce a right of pre-emption under the provisions of this Act' namely, Punjab Pre-emption Act, which grants that right in general whereas the aforesaid para. Only regulates the preference of persons concerned: ' It that case, the question was whether the period of limitation provided by section 30 of the Punjab Pre-emption Act, 1913, applied to a suit under paragraph 25 (3) (d) of M.L.R. 115/72 and the answer was that as a suit by a tenant is a suit to enforce a right of pre-emption under the Punjab Pre- emption Act, section 30 was fully applicable.
13. It follows, therefore, that the learned Additional Commissioner was wrong in taking the view that the provisions to section 28 of the Punjab Pre-emption Act, 1913 were not applicable to Noor Muhammad's suit in the Collector's Court.
14. The provisions of section 28 of the Punjab Pre-emption Act, 1913 are plainly mandatory in character. The legislative intention that a strict compliance with the provisions of that section is necessary is sufficiently and clearly conveyed by using the expression "shall". The section says that when more suits that one arising out of the same sale are pending, the plaintiff in each suit "shall be joined as defendant in each of the other suits". The expression "shall" when appearing in a statute is used as a term of art to impose a duty to do what is prescribed, not a discretion to do it or not according to whether it is reasonably practicable to do it or to do something like it instead.
This serves to point the contrast between what are matters of substance in a statute, and what are matters of machinery. (Grunwick Processing v. A.C. A.S. (1978) 1 All E.R. 338, 360, 361). The provisions of section 28 cannot be said to be procedural only, for it creates a right in favour of the plaintiff in one suit to be joined as a defendant in the other. The right to be a party implies and includes the right to be heard; and where the claim of one party depends upon the proof of a fact, the right of hearing must include the right to disprove that fact. Thus, a tenant claiming to pre-empt a sale has to prove by evidence, oral as well as documentary, that he was a tenant of the land and the defendants have an equal right to disprove, also by oral and documentary evidence, that he was not. That this is a right in the real sense is obvious enough. You cannot give a person a right to be a party and tell him that all that he is to do is to watch and see as a helpless spectator. That will be an illusion, not a right. I cannot conceive that the legislature intended by section 28 to create a mere illusion.
15. It may be said that the section applies where the suits arising out of the same sale are pending in the same Court but as was held in Muhammad Khan v. Abdul Khalil Khan, the words 'first right' in paragraph 25 (3) (d) of M.L.R. 115/72 have "impliedly bacome a part of section 15, (of the Pre- emption Act) and as such a suit by a tenant to enforce his 'first right' of pre-emption can rightly be called a suit to enforce a right of pre-emption under the provisions of this Act". The section must, therefore, be read with the necessary adaptations so that it is equally applicable when the suits are pending in two different forums.
16. There is ample authority to support the view that the provisions of section 28 are mandatory in nature and that a decree in contravention of those provisions is invalid. In Muhammad Akram Khan v. Mst. Kaniz Fatima Bibi and others PLD 1952 Lahore 489, two pre-emptors instituted suits, one after the other and a decree in one of them was passed in violation of the Punjab Pre-emption Act, Section 28. It was held that the decree "was of no avail as against the right of the appellant (the rival pre-emptor) whose suit was pending at the same time". In Ghulam Tayyab v. Shehroo Khan PLD 1062 Baghdad- ul-Jadid I, a pre-emptor, Ghulam Tayyab, had obtained a decree without impleading the rival pre-emptor, Shehroo Khan, contrary to the provisions of section 28 although in the suit of Shehroo Khan, Ghulam Tayyab had been impleaded as required by section 28. It was held that "the effect of the imperative provisions of this section is that if one of these suits is decided in the absence of the plaintiff in the other suit, the decision cannot be binding on that plaintiff'.
17. Learned counsel for Noor Muhammad, respondent, argued that the Collector and the Additional Commissioner had the jurisdiction to hear and decide the suit of Noor Muhammad and merely because they decided the question relating to the application of section 28 of the Pre-emption Act wrongly did not render their orders without jurisdiction. To support his contention, he referred to the well-known cases of Muhammad Hussain Munir v. Sikandar PLD 1979 SC 139 and Noor Muhammad v. Sarwar Khan PLD 1985 SC 131. In the first case, it was held that the expression "without lawful authority and of no legal effect" in Article 199 of the Constitution is an expression of art and refers "to jurisdictional defects as distinct from a mere erroneous decision whether on a question of fact or even on law. It is well-settled that where a Court or a Tribunal has jurisdiction and it determines that question, it cannot be said that it acted illegally or with material irregularity merely because it came to an erroneous decision on a question of fact of even on law". In Noor Muhammad v. Sarwar Khan, it was observed that "it has been held time and again that where a Court (in contradistinction to a persona designata) has jurisdiction to decide a matter, it can do so rightly or wrongly and the mere fact that the decision on a question of fact or law, is not correct, does not unnecessarily render it without lawful authority, and certainly not illegal".
18. As has been seen above, the ground on which the writ petitioners seek, under Article 199 of the Constitution, the judicial review of the orders of the Revenue Authorities is that in making those orders, the Revenue Authorities committed an error of law. In considering an error of law as a ground for judicial review, one must, in my opinion, bear in mind (1) the distinction between Courts of law (or the Courts in whom by Constitution or law vests the judicial power of the State) and administrative tribunals and authorities, however, described, exercising quasi-judicial functions and (2) the distinction between errors of law that go to jurisdiction and errors of law that do not go to jurisdiction. As regards the first distinction, it is to be noted that by paragraph 25, sub-paragraph (8), a Collector, a Commissioner and the Board of Revenue is deemed to be a Civil Court and has all the powers of a Civil Court under the law for the time in force and the final order passed in such a suit is to be deemed to be a decree of a Civil Court and shall be executed as such. A Civil Court is certainly a Court of law in whom vests the judicial power of the State. As regards such a Court, there is a presumption that where a decision making power is conferred by Statute upon it, Parliament intended to confer upon it power to decide the questions of law as well as questions of fact. We must, therefore, proceed on the basis that the Collector and the Additional Commissioner were vested with the authority to decide the questions of law. However, the Collector did not decide the question at all and the Additional Commissioner proceeded on a wrong view of section 28 of the Pre-emption Act, namely, that section did not apply to the proceedings in pre-emption suits before the Collector. This raises the question whether the error of law so committed by the Revenue Authorities was an error of law which went to their jurisdiction. The distinction between errors of law which go to jurisdiction and errors of law which do not is indeed subtle. But there is little difficulty in holding in this case that the error of law committed by the Revenue Authorities had affected their jurisdiction. It has been seen that the result of the view taken by the Additional Commissioner, namely, that section 28 of the Pre-emption Act was not applicable to pre-emption suits under paragraph 25 of M.L.R. 115 was that the rival pre-emptor Allah Dad was deprived of his right to be a party to the suit of Noor Muhammad, and what is much more serious, of his right to be heard. There is, therefore, no question that this error of law affected the jurisdiction of the Revenue Authorities. It should follow as a necessary consequence, therefore, that the orders of the Revenue Authorities were without lawful authority and of no legal effect.
19. Learned counsel of Noor Muhammad also argued that the defect in the proceedings before. The Collector was cured when the Additional Commissioner afforded hearing to Allah Dad's legal representative. As has been held above, the right of Allah Dad to be a party to the suit of Noor Muhammad necessarily included the right to rebut by oral and documentary evidence the claim of Noor Muhammad that he was a tenant of the land and had, therefore, the first right of pre- emption. The hearing afforded to Allah Dad by the Additional Commissioner or for that matter by the Member, Board of Revenue, could not, therefore, possibly cure the jurisdictional defect referred to above.
20. Learned counsel for Noor Muhammad also argued that the writ petition suffers from laches. For his contention, learned counsel referred to Settlement Authority through the Chief Settlement Commissioner Lahore and another v. Mst. Akhtar Sultan PLD 1976 SC 410 and Nusrat Fatima v. Azad Government of the State of Jammu & Kashmir PLD 1985 SC Azad Jummu & Kashmir 93.
21. The doctrine of laches is based upon the maxim that equity aids the vigilant and not those who slumber on their rights. It is defined as neglect to assert right or claim which, taken together with lapse of time and other circumstances causing prejudice to adverse party, operates as bar in Court of equity. It is a neglect, for an unreasonable and unexplained length of time under circumstances permitting diligence, to do what in law should have been done. (Black's Law Dictionary Fifth Edition). In Mian Miraj-ud-Din v. The Senior Superintendent of Police, Lahore District, Lahore and others PLD 1970 Lahore 569, the impugned order was passed in 1958 and the writ petition challenging it was filed in 1967. The question was whether this delay amounted to laches. It was held:-- ................. That except when there is a bar of limitation, the delay simpliciter has never been treated as a bar. Laches has often been defined as such negligence or omission to assert a right, as, taken in conjunction with the great lapse of time and other circumstances, causes prejudice to an adverse party. If a person seeking a remedy has not committed such a delay as would cause prejudice to the other side or would amount to waiver or acquiescence on the part of the person seeking the remedy, technical plea of laches, by itself, would not be sufficient to bar the remedy."
' This view was adopted in Nusrat Fatima's case. In Mst. Akhtar Sultana's case, the question related to an auction ordered by the Government. The respondent had not only not questioned the auction but had also participated in it and become the purchaser of the property. Later, she filed a writ petition, challenging the validity of the auction in which she had herself participated successfully. It was in these circumstances held that the writ petition was liable to dismissal on the ground of laches. I have already referred to Nusrat Fatim's case. In that case, it was held that the High Court would refuse its aid to State claims where a claimant by sleeping over his right for a great length of time has "acquiesced". As to what length of time would constitute laches depends upon and varies according to facts of each case.
22. In the facts of this case, no question of laches, in my opinion, arises. In the suit of Noor Muhammad, Allah Dad was not made a party, though Noor Muhammad knew very well that Allah Dad's suit was pending decision in the Civil Court. The failure to implead Allah Dad might well have been due to the ignorance or misconception of law but the true position being that section 28 of the Punjab Pre-emption Act applied to the suit of Noor Muhammad also, the effect produced by the failure to implead Allah Dad must be to render the decree invalid. Mukhtar Ahmad and Mst.
Rashida Begum had challenged the Collector's decree in appeal and then revision, though Allah Dad was not a party to the suit. Then the writ petition was in point of fact filed in his Court in June, 1979. As has been seen above, it was returned for removing some defects and it was the learned Civil Judge's order dated 20-4-1976 in this Court and the revision petition was pending when he had his suit decreed on 7-12-1976. In any case, Allah Dad's suit remained pending in the Civil Court; Noor Muhammad was a party to that suit. No prejudice whatever was, therefore, occasioned to Noor Muhammad by the delay in the filing of the writ petition. I cannot, therefore, think that the writ petition suffers from laches.
23. For these reasons, the writ petition is accepted and the Collector's decree dated 7-12-1976, the Additional Commissioner's order dated 10-1-1979 and the Member, Board of Revenue's order dated 16-4-1978 are hereby declared to have been made without lawful authority and of no legal effect.
The consequence will he that the suit of Noor Muhammad will be deemed to be pending before the Collector; that suit will be decided afresh after impleading the legal representatives of Allah Dad as defendants and after affording opportunity to the parties to lead evidence on the issues arising out of the parties' pleadings.
24. As a tenant had, under the law then in force, the first right of preemption, the decree of the Civil Court in Allah Dad's suit will be subject to the decision by the Revenue Authorities in Noor Muhammad's suit. In other words, if the suit of Noor Muhammad is decreed and the pre-emption money is paid in pursuance of the decree, then the suit of Noor Muhammad shall stand dismissed and if the suit of Noor Muhammad is dismissed, then the decree in favour of Allah Dad (or his legal representatives) shall stand in terms of the Civil Court's judgment dated 4-2-1985. R.S.A. No,106 of 1989 is disposed of accordingly.