' The facts leading to this writ petition are as follows :- ' Abdur Rehman respondent owed a sum of Rs, 34,650.03 to a certain Co-operative Society. Since the respondent failed to pay the amount, the Registrar Co-operative Societies auctioned his tenancy rights under the Colonization of Government Lands Act in a piece of land situate in Chat No, 43/M Tehsil Lodhran, District Multan. The auction was made under the provisions of the Co- operative Societies and Co-operative Banks (Repayment of Loans) Order, 1972 known as Martial Law Order No, 241. The tenancy rights were purchased by the petitioners. About three years later, the Collector's sanction under section 19 of the Colonization of Government Lands Act, hereinafter referred to as the Act, was obtained ex post facto. The respondent appealed against the grant of sanction to the Commissioner. The Commissioner also confirmed the sanction and dismissed the appeal. However, the respondent succeeded in revision. In deciding the revision petition, the Board of Revenue declared the sale of tenancy rights under Martial Law Order No, 241, and the ex post facto sanction under section 19 of the Act to regularize the sale, void and of no legal effect. It is against the order of the Board of Revenue that the auction purchasers have come up to this Court invoking its Constitutional jurisdiction.
2. The learned counsel for the petitioners contends that sanction under section 19 is only a formality and there can, therefore be no objection to the grant of the sanction ex post facto. He further contends that in fact, in view of the provisions of the Martial Law Order No, 241, hereinafter referred to as the Order, no such sanction was necessary. In this view of the matter, the learned counsel asserts that the order of the Board of Revenue is without lawful authority.
' However, the crux of the problem in this case is that there is a conflict between section 18 of the Act and paragraph 6 of the Order. The question of sanction under section 19 will arise only after this conflict has been resolved. For the convenience of reference, section 18 of the Act and paragraph 6(1) of the Order are reproduced below :- "18. None of the rights or interests vested in a tenant from Government of land to which this Act applies shall be attached or sold in execution of a decree or order of any Court or in any insolvency proceedings.
6(1) If any borrower does not pay a loan in the manner provided in paragraph 3 and is not prosecuted, or if prosecuted, is not convicted, the Registrar or an officer authorised by him in this behalf, may recover such loan by attachment or by attachment and sale of movable and immovable property and other assets belonging to him notwithstanding any alienation made by him by way of sale, gift, exchange, will, lease or by any other mode by any Court or authority of such property and assets in favour of any person after the date of grant of loan."
' The Act came into force in the year 1912 and the Order was promulgated in the year 1972.
3. The question, therefore, is whether the latter has superseded the former. The Supreme Court has laid down in Maj. Mehtab Khan v. The Rehabilitation Authority (1) after examining the precedent cases that "subsequent legislation on the same subject would, by necessary implication, repeal the earlier law to the extent of their mutual inconsistency or repugnancy. As observed in Goodwin v.
Phillips ''the latest expression of the will of Parliament must always prevail." The Court naturally leans against implying a repeal, and unless the two Acts are so plainly repugnant to each other that effect cannot be given to both at the same time, a repeal will not be implied. The prior statute would be repealed by implication if its provisions were wholly incompatible with a subsequent one, or if the two statutes together would lead to wholly absurd consequences ; or if the entire subject- matter were taken away by the subsequent statute."
From the tenor of section 18 and paragraph 6, it is clear that there would be In fact no conflict between the two should they be harmoniously interpreted. It is true that, according to para. 1, the Order has an overriding effect and it is also later in point of time. But paragraph 6 thereof is only an enabling provision whereas section 18 is categorical in its terms. The purport of section 18 of the Act, in my opinion, is not merely that the tenant's rights and interests under the Act have been protected ; but such rights and interests, which no doubt come within the definition of property, have been kept out of the pail of such "available property" of the tenant as can be proceeded against. This section is in terms similar to section 60 of the Civil Procedure Code wherein properties of certain descriptions have been made immune to the processes of the Court. Properties so exempted either under the Civil Procedure Code or the Colonization of Government Lands Act or any other law for that matter, cannot be allowed to be treated as properties and proceeded against by the Courts or Authorities for the benefit of the creditors or decree-holders. This interpretation of the laws giving exemption to certain properties from the processes of attachment and sale, is not in conflict with the enabling provisions of the paragraph 6 of the Martial Law Order.
The Registrar still has the full authority under the said paragraph to attach and sell any movable or immovable property of the borrower other (1) PLD 1973 SC 451 than the exempted property. It can be very easily seen that unless this restriction is placed on the authority of the Registrar, some extremely undesirable consequences are likely to follow which no decent society can tolerate and no Court administering justice tampered with mercy can countenance. For example, wearing apparel of a judgment-debtor are exempt under section 60 though they do fall under the description of immovable property. But should the Registrar be given a free hand under paragraph 6 of the Order to attach and sell any immovable property of the borrower then he may not stay his hands even at the wearing apparel of the borrower and may in certain cases reduce the borrower unwittingly to fatal destitution.
4. In the case of the rights and interests of a tenant under the Colonization of Government Lands Act, there is another good reason why the Registrar should not be allowed to reach them. By putting to auction such rights and interests the Registrar will in fact be imposing a tenant on the Government without its consent. And should it be said that an ex post facto consent given by the Collector would remove this objection then such consent will undoubtedly be subject to review by the Board of Revenue. The Board of Revenue may then refuse it on any ground.
' And, a party that has been refused to be accepted as a tenant does not have a vested right in the tenancy which might qualify him to maintain a writ petition against the Board of Revenue or any other subordinate authority.
5. In the present case the petitioners cannot claim that simply because they have purchased the tenancy rights of the respondent and paid a huge sum to the Co-operative Society, they must necessarily be substituted as tenants in place of the respondents. That they have invested a large sum in this adventure is not a relevant consideration at all.
6. In my opinion, therefore, the impugned order of the Board of Revenue cannot be said to be without lawful authority.
' I am conscious of the fact that the petitioners will have to face great hardship as a result of this decision. But for the sake of one party, the legal position cannot be changed and law cannot be twisted.
7. The writ petition is accordingly dismissed. The parties shall bear their own costs.