Muhammad Nawaz landlord/respondent brought a suit for ejectment against Muhammad Hussain tenant/defendant from land measuring 96 Kanals situated in Chak No.94/DB Tehsil Yazman District Bahawalpur owned by him in the Court of Assistant Collector of Ist Grade, Yazman, under Rule 2(1) of the Punjab Land Reforms (Procedure for Ejectment Suits) Rules, 1977, read with paragraph 25 of the Land Reforms Regulation M.L.R. 115 of 1972.
2. It was alleged by the respondent/landlord that the petitioner/tenant since had failed to pay the rent in accordance with the terms of tenancy; had rendered the land unfit for the purposes of cultivation; cultivation, was not being carried out in accordance with the custom and further that the water was being sold out to other landlords, therefore, he was liable to ejectment. In reply to this, the petitioner/tenant (Muhammad Hussain) through his written statement denied the relationship of landlord and tenant alleging thereby that he was cultivating the land under one Chaudhry Ihsan Ullah and as such he was paying share of produce to him and the respondent/landlord was not entitled to receive rent/produce of land. He also challenged the title over the land as claimed by the respondent/landlord. As regards the other allegations of ejectment, those were straightaway denied.
3. On the basis of the controversial points obtained from the pleadings of the parties, the learned Assistant Collector framed the following issues;---
(1) Whether relationship of landlord and tenant exists between the parties?
(2) Whether the plaintiff could obtain land for self-cultivation despite his being merely a lease holder under the Government?
(3) Whether the defendant/tenant is not cultivating the land in accordance with the instructions of the landlord/plaintiff?
(4) Whether the defendant/tenant has rendered the land unfit for purposes of cultivation?
(5) Whether the defendant/tenant has defaulted in payment of rent/produce?
(6) Relief.
4. Since the Assistant Collector of 1st Grade failed to decide the case within the stipulated period of sixty days, the case therefore, under Rule 4 of the ejectment Rules stood transferred to the Court of Collector for decision.
5. On the conclusion of the trial, the learned Collector dismissed the suit vide order dated 29-2- 1988 on the sole ground that there existed no relationship of landlord and tenant between the parties. As regards other issues, the learned Collector did not record any findings as he felt no necessity for such exercise in view of the decision on issue No. 1.
6. The respondent/landlord, feeling aggrieved by the dismissal of the suit, preferred an appeal against the order dated 29-2-1988 in the Court of Additional Commissioner (Revenue) Bahawalpur Division, Bahawalpur, which was accepted vide order dated 25-4-1988 and as a result of that the impugned order was set aside and the petitioner/tenant was ordered to be ejected from the suit land forthwith. The petitioner/tenant assailed the order of ejectmeat dated 25-4-1988 passed by the Additional Commissioner through Civil Revision No.96 of 1988 before the Board of Revenue, Punjab, Lahore. The revision petition was dismissed by the Board of Revenue vide order dated 30- 11-1989 and the ejectment order passed by the Additional Commissioner was as such upheld. The petitioner/tenant, feeling still not satisfied, has challenged the orders dated 25-4-1988 and 30-11- 1989 passed by the Additional Commissioner and as well the Board of Revenue respectively through the present Constitutional petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973.
7. Learned counsel for the parties heard
8. Learned counsel for the petitioner has argued that under the Punjab Land Reforms (Procedure for Ejectment Suits) Rules, 1977, no right of appeal is granted to landlord against the order of dismissal of ejectment suit, therefore, the appeal filed by the respondent/landlord against the order of dismissal dated 29-2-1988 passed by the Collector in the Court of Additional Commissioner, Bahawalpur, was incompetent and the order of ejectment dated 25-4-1988 as such was without jurisdiction. It is further argued that the learned Member, Board of Revenue, Punjab, has committed error of law, while upholding the order of ejectment passed by the Additional Commissioner which is coram non judice. Reliance is placed on Imtiaz Gohar and others v.
Additional Commissioner and others 1990 M LD 1912.
9.As against that, it is argued by the learned counsel for the respondent that in case the respondent/landlord had no right of appeal, yet the Additional Commissioner had the powers to interfere with the order of the Collector in exercise of revisional jurisdiction and the order passed by the Additional Commissioner, as such, suffers from no jurisdictional defect. Reliance is placed on a Division Bench's decision of this Court titled Tahir Hussain and 2 others v. Khan 1993 CLC 2161, whereby it was held as follows:--- "(5) It is manifest from the provisions of Rule 7 afore-quoted that although the right to file a revision petition against an order or proceedings was available only to an aggrieved tenant, Additional Commissioner was also possessed of suo motu revisional jurisdiction. There can, however, be no doubt whatever about the revisional jurisdiction of the Board of Revenue under paragraph 25(7) of MLR 115 which it can exercise of its own motion or otherwise i.e., at the instance of any of the parties affected by any order of the Collector or Commissioner. Supreme Court of Pakistan in the case of Lucas alias Luci and others v. S.M. Nasim, Member (Revenue), Board of Revenue, Punjab, Lahore and another (PLD 1984 SC 227) while referring to Rule 7(4) of 1977 Rules which provided that the order passed by the Commissioner in revision shall be final held that" even if it be assumed that under any rule, a final approach through revision before Board of Revenue in matters dealt with under para. 25 is prohibited or not provided or the rule is silent in that behalf, the provision in sub-para.
(7) of para. 25 make it amply clear that the Board of Revenue can "at any time of its own motion of otherwise call for the records of any case or proceedings, "under this paragraph" which is pending or in which a Collector or Commissioner has passed an order, for purpose of satisfying itself regarding correctness, legality or propriety of such proceeding or order. "
Support is also sought from Khuda Bakhsh v. Assistant Commissioner, Bahawalpur, etc. 1995 CLC 788 whereby it was observed as under:--- "13. It is significant to note that in section 8 of West Pakistan Land Revenue Act while creating the post of a Commissioner it is said "there shall be Commissioner" whereas in section 9 ibid where the post of an Additional Commissioner is visualised the expression used is "Government may appoint in any Division an Additional Commissioner". This shows that the creation of the post of Commissioner in every Division is mandatory whereas it is the discretionary in so far as the appointment of Additional Commissioner is concerned. The legislature in its wisdom made it optional for Government to appoint an Additional Commissioner in a Division where the quantum of work and exigencies of administration so require but when an Additional Commissioner is appointed in a Division, he enjoys all or any of the powers conferred on a Commissioner.
14. Under the West Pakistan Land Revenue Act the appellate forum against the order of Collector under section 161 subsection (1) is the Commissioner and word 'Additional Commissioner' is not used in this section. However, the Additional Commissioner by virtue of powers envisaged under section 9 of the Land Revenue Act also hears appeals and enjoys all the powers of the Commissioner of course "subject to the general supervision and control of the Commissioner of the Division". Similarly if para. 25 of M.L.R. 115 makes Commissioner as the appellate forum and stipulates that 'Collector', 'Commissioner' and 'Board of Revenue' shall have the meaning assigned to them in the "West Pakistan Land Revenue Act", it adopts the aforementioned nomenclature in all its connotations which have been spelt out in various sections of the West Pakistan Land Revenue Act. The view that in the scheme of law the powers of 'Commissioner' are enjoyed by the Additional Commissioner as well is further strengthened by the definition of the word 'Commissioner' in the General Clauses Act wherein the word 'Commissioner' has been defined in subsection (13) of section 3 which reads as under:--- "'Commissioner' shall mean the chief officer in charge of the revenue administration of a division (and shall include an Additional Commissioner of such division)."
It was also argued that the writ petitioner neither raised any objection with regard to the competency of appeal before the Additional Commissioner nor before the Board of Revenue and there is no mention of such objection in the grounds of memo of revision filed before the Board of Revenue, therefore, the petitioner for having acquiesced in irregular proceedings or defective jurisdiction is estopped to raise question of jurisdiction in Constitutional petition at the first time.
10. On merits, it is concurrently led by the Additional Commissioner and as well the learned Member, Board of Revenue on the basis of revenue record examined by them that the petitioner/defendant was proved to be tenant under the respondent/plaintiff and he was legally bound to fulfil the terms and conditions of tenancy, failing which he was liable to ejectment. This aspect of the case has not been challenged by the learned counsel for the petitioner during the course of arguments. The petitioner on merits has no case. It is settled law that the petitioner seeking the relief under the exercise of extraordinary jurisdiction of High Court relating to Constitutional writs or orders must come to Court with clean hands otherwise the petitioner would disentitle himself to any relief on that ground alone. Reliance is placed on Tendo Adam Transport Co. Ltd. v. Member, Board of Revenue, West Pakistan and others PLD 1966 (W.P.) Kar. 527.
11. So far as the main objection as to the lack of jurisdiction on the part of the Additional Commissioner to hear the appeal against the order of Collector passed under Rule 4 of the Punjab Land Reforms (Procedure for Ejectment Suits) Rules, 1977, is concerned, that too does not help much the petitioner to succeed in availing Constitutional remedy for:
(1) The petitioner, throughout the proceedings up to the Court of Member, Board of Revenue, which is apex Court as far as the revenue matters are concerned, has failed to raise such objection. He himself knowingly and willingly has submitted to the jurisdiction of these authorities and has acquiesced in it. In case Hafeezud Din v. Mien Khadim Hussain and another PLD 1965 (W.P.) Lah. 439 a somewhat similar situation arose and it was observed by the learned Division Bench of this Court that "A party litigating must act consistently. It is a wholesome doctrine of law that a party cannot be allowed to play fast and loose; blow hot and cold and approbate and reprobate, to the detriment of his opponent. Where a person knowingly and wilfully invites the Court to adopt a procedure, he cannot be permitted to turn round and blame the Court for the very same procedure which he himself invited the Court to follow. When the conduct of the applicant has been such as to disentitle him to the assistance of the Court, no writ can be issued at his instance even though the impugned order may in fact be found to have been passed by the authority concerned without any jurisdiction. It is not that the order under attack has been clothed with any legality but because of the fact that the mouth of the person who has acquiesced in it is shut against it and in equity he cannot be heard to say anything against it. The Court will refuse to exercise its discretion in his favour in those circumstances. A person can be said to have acquiesced when he was aware or could have been aware of the defect or jurisdiction in the Tribunal with the exercise of due diligence but did not object to the usurpation of the power by the Tribunal and invited it to exercise the jurisdiction which it lacked." This view is fortified by Syed Alain Hussain and others v. Syeda Shamim Akhtar and another PLD 1974 SC 100; and
(II) Even if it is presumed that the Additional Commissioner had no jurisdiction to hear the appeal and the decision made by him is coram non judice and the same as such be ignored altogether, still the fact remains that ultimately the matter came up for hearing before the Member, Board of Revenue in revision whose revisional jurisdiction suo Motu and as well on the application of any aggrieved person cannot be disputed under the law. The provisions of sub-para. (7) of para. 25 of M.L.R. 115 make it amply clear that the Board of Revenue can at any time of its own motion or otherwise call for the record of any case or proceedings and to look into the correctness, legality or propriety of such proceedings or order. The learned Member, Board of Revenue, vide his order dated 30-11-1989 after hearing the parties and examining the record, has held that the petitioner/tenant is liable to ejectment under the law which order is validly passed in exercise of revisional jurisdiction.