' K. E. CHAUHAN, J.-The dispute in this case is about land situated in Village Rodu Sultan Tehsil and District Jhang as detailed in the writ petition. Ahmad Bakhsh respondent No, 2 filed an application before the Assistant Collector Grade T tehsil and district Jhang complaining that be was the tenant of the said land but had forcibly been evicted by Muhammad Bakhsh and his sons and, therefore, after declaring that eviction as illegal, the possession of the land in dispute may be restored to him.
The matter was attended to by the learned Assistant Collector who after giving opportunity to all concerned and recording evidence produced before him and also after going through the revenue record came to the conclusion that Ahmad Bakhsh respondent No, 2 was a tenant of the land in dispute and had been unlawfully evicted by Muhammad Bakhsh and his sons. After recording this finding he directed that Muhammad Bakhsh should be put back in possession of the land. The learned Assistant Collector further directed that as Muhammad Bakhsh and his sons had violated Martial Law Regulation by an unlawful and forcible eviction of the tenant, therefore, a Kalanlara should be prepared and forwarded to the Illaqa Magistrate for initiating necessary proceedings against them. A copy of the order of the Assistant Collector dated 31-3-1976, has been filed by the petitioner in the form of Annexure "A". Khadim Hussain one of the sons of Muhammad Bakhsh hereinbefore mentioned has come up in writ petition against the aforesaid proceedings and orders to this Court.
2. Learned counsel has referred to Para. 25 of Martial Law Regulation 115 of 1972. This paragraph reads as follows :- "25. Rights of tenants.--(1) A tenant shall not be ejected from his tenancy unless it is established in Revenue Court that he has-
(a) failed to pay the rent in accordance with the terms of his tenancy ; or
(b) used the land comprised in the tenancy in a manner which renders it unfit for the purposes for which he held it ; or (c)failed to cultivate or arrange for the cultivation of the land comprised, in the tenancy in accordance with the terms thereof, or if there are no express terms in this behalf in accordance with the customary manner of cultivation in the locality ; or
(d) sublet his tenancy.
(2) The crop grown at any time during Rabi 1971-72 on any land comprised in a tenancy shall, on its maturing, be apportioned between the tenant and the landlord in accordance with the law for the time being in force.
(3) As from Kharif 1972 -
(a) land revenue and other taxes, cesses, surcharge and levies on land shall be payable by the owner ;
(b) the liability for payment of water-rate, and providing seed for any land shall be that of the owner or other person in possession thereof, other than the tenant ;
(c) the cost of fertilisers and pesticides required for the land comprised in a tenancy shall be shared equally between the owner and the tenant ;
(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 his tenancy.
(4) No owner or person in possession of any land shall levy any cess on, or take any free labour from, any of his tenants."
3. Learned counsel has argued that the prohibition against eviction of tenants as contained in Para. 25 of Martial Law Regulation 115 of 1972, is meant for protection of tenants of such landlords or owners who owned land in excess or the ceiling permissible under the said Regulation and that it was not applicable to all owners of land or landlords in general. The contention has no merit. There is nothing in Para. 25 which has been reproduced above In extenso to support the plea of the learned counsel. Rather clause (d) of sub-para. (3) of Para. 25 gives a right of pre-emption to a tenant in respect of the land comprised in his tenancy. We asked the learned counsel that would it mean that the right of pre-emption has been given only to such tenants who were tenants of land- owners having land in excess of the permissible ceiling or was it granted to tenants in general of all types of owners of lands. Learned counsel felt hesitant in making any submission on the subject though to remain consistent with his plea he suggested that the aforesaid concession might also be confined and limited only to tenants of big landlords who had lands in excess of the permissible ceiling and who had to surrender the excess area. The contention has no force. Attention in this connection is invited to Para. 24 of the Regulation which placed a restriction on alienation of holdings. Sub-para. (6) of Para. 24 says that, "nothing in this paragraph shall apply to land, whether cultivable or other, which is bona fide required by the owner for the purpose of building thereon, and any tenant in possession of such land who refuses to quit after notice may be evicted under the orders of the Deputy Commissioner". If this Paragraph is read in conjunction with Para. 25 of the Regulation, it will be evident that the tenants within the contemplation of it Para. 25 of the Regulation are tenants in general and not merely tenants of any particular class or type of landlords. We hold accordingly.
4. The next point argued by the learned counsel was that no doubt para. 25 gave certain rights and protections to tenants by laying down that a tenant shall not be ejected unless it was proved that he had committed breaches mentioned in the aforesaid paragraph. Learned counsel argued that this was a prohibition against eviction but there was no provision in the Regulation authorising any authority to restore the possession back to an unlawfully evicted tenant for which he submitted the tenant must approach a civil Court in the form of a regular suit. This plea also has no merit. At page 115 of Manual of Land Reforms by Malik Ghulam Rasul Naseem and Muhammad Sharif Shad (1976 Edition), there is published a Notification, dated 9-3-1973, which reads as follows :- "Provisions for Restoration of Tenancies of Tenants who have been ejected in an unauthorised manner.
(Lahore, dated the 9th March, 1973)
' No, DSL-71/73/1007-LC (11).-In exercise of the powers conferred by sub-paragraph (8) of paragraph 4 of the Land Reforms Regulation 1972 (Martial Law Regulation 115) the Land Commission of the Punjab with the approval of the President of Pakistan is pleased to make the following provisions for the restoration of tenancies of tenants who have been ejected in an unauthorised manner :- (i)A tenant who is or has been ejected or dispossessed from his tenancy in an unauthorised manner after the 19th December, 1971, may make an application to a Revenue Officer of the area concerned exercising the powers of an Assistant Collector Ist Grade asking for his tenancy to be restored. Such an application shall be made unto the 14th April, 1973, in the case of a tenant who has already been ejected, and in the case of others within thirty days of the date of ejectment.
(ii) On receiving an application under clause (i) the Revenue Officer shall hold an enquiry and if he is satisfied, after giving an opportunity of being beard to the landlord, that the ejectment was unauthorised, he may order the restoration of the tenancy.
(iii) On an order under clause (ii) being made, the tenant shall be put in possession of the tenancy from the next cropping season ; provided that if the interest of justice so demands, the Revenue Officer may order restoration of possession to the tenant immediately on payment by him to the landlord or the person in possession of the tenancy such compensation for the standing crops, if any and for preparation of land for sowing, as the case may be, as the Revenue Officer may determine. If the compensation so determined is not paid within six weeks from the date of the order of the Revenue Officer, the order of immediate restoration shall be cancelled or modified."
' This notification gives a clear authorization to the Revenue Officer concerned to put an ejected tenant back into possession. The contention raised by the learned counsel, therefore, cannot be maintained. When confronted with this situation, learned counsel submitted that there was no provision in Martial Law Regulation 115 of 1972, authorising the issuance of any such notification and that the aforesaid notification suffered from what he called excessive delegation of powers. The plea raised has no substance. Subpara. (8) of Para. 4 of the Regulation lays down 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". Coupled with this is Para. 5 which states that "5. Delegation of powers.-A Commission may, by notification in the official Gazette, direct that the powers exerciseable by it under this Regulation may, subject to such conditions, including provisions as to appeal, revision or review, if any, as may be specified in the notification, be exercised also by any of its members or officers or authorities subordinate to it : Provided that a Commission shall not delegate its powers under subparagraph (2) of paragraph 7 to an officer below the rank of a Commissioner of a Division."
If these two provisions of law are read together it will be evident that' whereas Para. 25 provided certain safeguards against unlawful eviction of tenants, the notification above reproduced provided a consequential relief and laid down that in case the said protection was violated, the authority concerned would be competent to put the evicted tenant back into possession. The notification hereinbefore mentioned therefore, is within the competence and framework of the Regulation and cannot be taken exception to on the basis of the ground urged. Moreover, according to the wording of supara. (8) of Para. 4, such "order", as is contained in the notification above referred to, would be deemed to form part of the Regulation and shall have effect accordingly. This provides a complete answer to the plea advanced by the learned counsel.
5. Learned counsel then argued that under the notification above reproduced, the learned Assistant Collector has failed to exercise jurisdiction when he has not directed payment of any compensation to the petitioner of the standing crops if any and for preparation of land for sowing.
The point does not seem to have been raised before learned Assistant Collector as it is conspicuous by its absence in his order and even otherwise we have not been able to appreciate the same inasmuch as when the eviction had taken place on 24.3-1976, the application for restoration of possession had been filed on 26-3-1976 and was decreed on 31-3-1976, how could there be made a case for compensation for the aforesaid unlawful occupation of the landlord for five days ? Be that as it may, as the point was not put forward before the learned Assistant Collector, we are not prepared to attend to it for the first time in the course of writ jurisdiction, especially, when it depends upon certain factual matters which one has to establish before claiming compensation and which were in fact not established before the Court/authority concerned.
6. Learned counsel for the petitioner wanted to take exception to the relevant finding of the learned Assistant Collector/Sub-Assistant Land Commissioner by urging that Ahmad Bakhsh was not a tenant of the disputed land and the Assistant Collector has erred in holding otherwise. This is a finding of fact and as held in Muhammad Hussain Munir and others v. Sikandar and others (I), it cannot be taken exception to especially when it is based on the relevant evidence and the attending circumstances. We have gone through the copies of the relevant statements of the parties, the tenant, the Patwari and the Girdawar Halqa and other evidence. We note that some evidence did exist on the basis of which the finding recorded by the learned Assistant Collector/Sub-Assistant Land Commissioner could be given. We do not find any justification to interfere in this finding of fact.
7. The last point argued was that under Para. 30 of the Regulation, no doubt, contravention of the Regulation has been made an offence and penalty has been prescribed therein, but according to Para. 31 of the Regulation, "no Court shall take cognizance of an offence under this Regulation except on a complaint in writing made by order of, or under authority from, the Commission." The learned counsel submitted that the power to order prosecution in this way was exclusively of the Commission and as the Commission bad not delegated the aforesaid power to the Assistant Collector Grade I, therefore, the impugned order, so far as it directed the prosecution of the petitioner, was without lawful authority.
' Mr. Ali Muhammad Khokhar the Departmental Representative and Mr. Aqil Mirza learned A. A-.G., have shown to us a notification bearing No, Adm. I-552-75/2876-LC (II), dated 25-6-1975, issued under Para. 5 read.
(I) PLD 1974 SC 139 with sub-paragraph (5) of Para. 4 of the Land Reforms Regulation which is contained at pages 211- 212 of the Land Reforms in the Punjab, Volume I (under compilation). It reads as follows :- "NOTIFICATION ' Lahore: dated the 25th June, 1975, No, Adm. 1-552-75-75/2is76-LC (II).
' In exercise of powers conferred on it under paragraph 5 read with sub-paragraph (5) of paragraph 4 of the Land Reforms Regulation, 1972 (Martial Law Regulation No, 115) and all powers enabling it in this behalf the Punjab Land Commission is pleased to direct that in its Notification No, DSH-37/73/1070-A-LC (II), dated 14th March, 1973, after Clause (iii) the following Clause (iv) shall be added t- '(iv) Power to file a complaint in Sub-Assistant Land Commissioner of writing against- the Tehsil concerned.
(a) a person, who contravenes any of provisions of paragraph 25 of the Regulation ; and
(b) a public servant, who contravenes or fails to comply with any of the provisions of the Regulation or the rules or order made thereunder or fails to furnish any information required by such provisions, or wilfully furnishes incomplete or false information or tampers with any record relevant to the purpoes of such provisions, or obstructs any person in the discharge of his duties or functions under such provisions'. "
' The above notification is to be read with another notification dated 22-3-1972 published at pages 143-144 of the same Book which is to the following' effect :- "NOTIFICATION The 22nd March, 1972 ' No, ASR-I-74/72/824-LC.-In exercise of the powers conferred on it under paragraph 4(5) of the Land Reforms Martial Law Regulation, No, 115, the Punjab Land Commission is pleased to -
(1) set up an organization consisting of Land Commissioners, Deputy Land Commissioners, Assistant Land Commissioners and Sub-Assistant Land Commissioners, at the Divisional, District Sub-Divisional and Tehsil levels ; and
(2) invest -
(a) Commissioners of Divisions, with the powers of Land Commissioners within their respective jurisdictions ;
(b) Deputy Commisioners of Districts, with the powers of Deputy Land-Commissioners within their respective jurisdictions
(c) Assistant Commissioners of Sub-Divisions with the powers of Assistant Land Commissioners within their respective jurisdictions ; and
(d) Tehsildars of Tehsils, with the powers of Sub Assistant Land Commissioners within their respective jurisdictions. The officers mentioned above will exercise these powers subject to the general control and superintendence of the Chief Land Commissioner."
' Read together these two notifications show that a Tehsildar is ex offacio Sub-Assistant Land Commissioner. (A Tehsildar otherwise is Assistant Collector Grade I). The order has been signed by the respondent No, I as Assistant Collector Grade I but as laid down in Piao Gul v. The State (1), description or misdescription of an officer or his designation is immaterial so long as he possesses the powers to proceed with the matter and pass orders therein. From that point of view, the orders passed on the subject in hand was passed by a competent authority and the point raised has no merit and is hereby repelled. This, however, is not the end of the matter. As rightly pointed out by the learned counsel for the petitioner, paragraph 25 is intended to regulate the relationship of a landlord and a tenant. The order of the learned Assistant Collector purports to show that he directed filing of a complaint against (I) Muhammad Bakhsh and his sons, namely, (2) Khadim Hussain, (3) Jani Khan, (4) Allah Bakhsh, (5) Hussain Bakhsh and (6) Ghulam Hussain without specifying as to which of them was the landlord. According to the statement of Ahmad Bakhsh tenant (copy placed on record) he was tenant of Muhammad Bakhsh alone. The prosecution, however, has been directed of all the persons hereinbefore mentioned including the petitioner Khadim Hussain who was not a landlord of the disputed land. The impugned order of the learned Assistant Collector (Sub Assistant Land Commissioner) in the matter of directing prosecution is thus without lawful authority inasmu ch as it purports to be directed also against certain person who were not landlords and the said order on this score and in that respect shall have to be declared as to be without lawful authority and of no legal effect. We hold and declare accordingly.
Here we may note that whereas the petitioner is not one of the landlords and his prosecution has been declared by us to be without lawful authority, but this finding will reflect on the rest of the case of the petitioner as well inasmuch as he will then have no locus standi to agitate against putting Ahmad Bakhsh respondent back into possession of the land of which petitioner was not an owner or landlord. We hold accordingly.
8. The upshot of the above discussion is that this writ petition partially succeeds and that portion which directed lodging of complaint is declared to be without lawful authority. In view of the partial success of the petition, the parties are left to bear their own costs.
(1) PLD 1960 SC 307