This writ petition is addressed under section 44 of the AJ&K Interim Constitution Act, 1974.
2. The succinct facts forming the background of the instant writ petition are, that the petitioner purchased the 'Arhakdari' rights of the land measuring two Kanals and 8 Marlas comprising Survey No,1226, 'Khata' No,928 and 'Khewat' No,247, situated in Village Khanaili, Tehsil and District Mirpur, from the father and uncle of respondent No, 1 . He obtained the proprietary rights of this land under the 'Nautore' Act, 1989. These rights were granted to him vide order dated February 15, 1997.
Subsequently, on April 28, 1997, mutation to this effect was also sanctioned in his favour.
Respondent No,1 filed an appeal against the order of grant of proprietary rights on.- August 16, 1997.
The learned Commissioner dismissed the appeal and held that it was hopelessly time-barred.
Feeling aggrieved from the said order, the respondent filed a revision petition before the learned Member, Board of Revenue. He accepted the revision petition vide order dated April 23, 1999.
Feeling dissatisfied from the aforesaid order of the Member, Board of Revenue, the petitioner filed a review petition before the Board of Revenue which was dismissed by him vide order dated November 29, 1999. Now these orders of Board of Revenue have been challenged through the instant writ petition.
3. This writ petition was admitted for regular hearing. Notices were issued to the respondents, who have filed their respective written statements etc.
4. The learned counsel for the petitioner, Mr. Mumtaz Hussain, argued that the proprietary rights were granted to the petitioner on February 15, 1997 and a mutation to this effect was also sanctioned on April 28, 1997. The petitioner filed an appeal after the span of about four months before the Commissioner, who dismissed the same on the ground of limitation. He submitted that the learned Member, Board of Revenue did not consider the point of limitation and even it is not mentioned in his judgment, that whether he has condoned the period of limitation? He further maintained that the limitation for an appeal is prescribed under section 162 of the West Pakistan Land Revenue Act, according to which, the limitation for filing an appeal before the Commissioner is 60 days, while in the instant case, the appeal was filed after the span of about four months. The appeal was hopelessly time-barred. The learned Member, Board of Revenue has no power to condone the limitation. While emphasizing on this point, he submitted that in the instant case, when the limitation was provided under a special law, then section 29 of the Limitation Act, shall come into play, according to which, section 5 of the Limitation Act, shall not apply to the instant case. Even otherwise, the Revenue Authorities have no jurisdiction to condone the limitation and the learned Member, Board of Revenue has wrongly not considered the point of limitation. He referred PLD 1974 Azad J&K 5, PLD 1997 SC(AJ&K) 17 and 1995 SCR 354 in support of his contentions.
5. While repudiating the arguments of the learned counsel for the petitioner, Raja Hassan Akhtar, the learned counsel for the respondents, contended that section 167 of the West Pakistan Land Revenue Act contained that the whole of the Limitation Act shall apply to appeals, revisions and review petitions, under the said Act, therefore, section 5 of the Limitation Act, shall apply to the instant case. He further submitted that he had moved a separate application before the Commissioner under section 5 of the Limitation Act for condonation of delay, but he has not considered the same. He further maintained that it was enjoined upon the learned Commissioner to condone the limitation, while invoking the powers under section 5 of the Limitation Act.
6. 1 have considered the arguments of the learned counsel for the parties, gone through the record and have also .Given my. Utmost ponder to the respective arguments of the learned counsel for the parties.
7. The complete perusal of the record shows that the proprietary rights were granted to the petitioner on February 15, 1997. A mutation regarding the grant of ownership was also sanctioned in his favour on April 28, 1997. The respondent filed an appeal before the Commissioner on August 16, 1997. The period for an appeal before him under section 162 of the West Pakistan Land Revenue Act is 60 days. For having proper perception, I would like to reproduce section 162 of the aforesaid Act, which reads as under:-- "Limitation for appeals.--Save as otherwise provided by this Act, the period of limitation for an appeal under section 161 shall run from the date of the order appealed against and shall be--
(a) thirty days, where the appeal lies to the Collector;
(b) sixty days, where the appeal lies to the Commissioner; and
(c) ninety days, where the appeal lies to the Board of Revenue."
8. In the instant case, the limitation was provided under a special law. Now the question arises that when the limitation was provided under a special law, then section 5 of the Limitation Act, shall apply to the instant case or not? Section 29 of the Limitation Act, shall apply to all those cases, in which limitation was provided under a special law. It contains that which provision of the Limitation Act, shall apply to such cases. For comprehending it, I would like to reproduce section 29 of the Limitation Act which is as under:-- "29.--(1) Nothing in this Act shall affect section 25 of the Contract Act, 1872.
(2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed therefor by the First Schedule, the provisions of section 3 shall apply, as if such period were prescribed therefor in that Schedule, and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law--
(a) the provisions contained in section 4, sections 9 to 18, and section 22 shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law; and
(b) the remaining provisions of this Act shall not apply.
(3) Nothing in this Act shall apply to suits under the Divorce Act (IV of 1869).
(4) Sections 26 and 27 and the definition of 'easement' in section 2 shall not apply to cases arising in territories to which the Easements Act (V of 1882), may for the time being extend."
9.' The aforesaid provisions of law, clearly convey that section 5 of the Limitation Act, shall not apply to the cases where the limitation is provided under a special law.
10. Now the next question crops up, whether section 167 of the West Pakistan Land Revenue Act, contains that whole of the Limitation Act, shall apply to the cases under the aforesaid Act? Section 167 of the said Act contains that for the purpose of computation of period of limitation, the provisions of the Limitation Act, shall apply, which means that all the provisions of the said Act, regarding the computation of the period shall apply. Chapter III of the Limitation Act deals with the computation of period of limitation. Thus, it can safely be said that section 167 of the West Pakistan Land Revenue Act postulates that Chapter III of the Limitation Act shall apply to the proceedings under the West Pakistan Land Revenue Act. Chapter III of the Limitation Act contains sections 12 to 25 of the Limitation Act. Thus, even section 167 does not confer the power under section 5 of the Limitation Act to the Revenue Authorities. For having proper perception, I would like to reproduce section 167 of the West Pakistan Land Revenue Act, which is as under:-- "-167.Computation of period of limitation under this chapter.--In the computation of the period for an appeal from, or an application for the review or revision of, an order under this Act, the limitation therefor shall be governed by the provisions of the Limitation Act, 1908 (Act IX of 1908)."
11. The aforesaid provisions of law, nowhere contain that the entire Limitation Act, shall apply to appeals, revisions and review petitions filed under section 167 of the West Pakistan Land Revenue Act. The basic purpose of this provision was to make sections 12 to 25 of the Limitation Act applicable to appeals, applications, revisions and review petitions etc. The aforesaid Act was enacted for the purpose of computation of the period of limitation. The words used in the aforesaid section clearly convey that the intention of the Legislature was that for the computation of the period of limitation, such provisions of the Limitation Act, should be made applicable to it. The purpose of legislation and the intention of the Legislature could be gathered from the words used in the legislation. It is the primary and first source of the interpretation of statute. This view finds support from Crawford's Interpretation of Law, page 273 which reads as under:-- "172. Finding the legislative intention.--Since the purpose of construction is to ascertain the legislative intent, this constitutes the major step in the process of interpreting statutes. Finding the law application is simply preliminary it merely produces the material-from which the legislative intention or meaning is to be found. But ascertaining the intention of the Legislature forms the very heart of the interpretation process. Throughout this treatise, we have discussed the various ways by which the meaning of statutes are to be ascertained. The first source from which the legislative intent is to be sought is the words of the statute."
11-A. The aforesaid section 167 of the Land Revenue Act makes the provisions of the Limitation Act, 1908 regarding the computation of the period of limitation applicable to appeals, revisions and review petitions under the Land Revenue Act which means that only the provisions of the Limitation Act pertaining to the computation of the period of limitation were made applicable through the aforesaid provisions. Section 5 of the Limitation Act, was not applicable to the appeals, revisions and review petitions, filed under the West Pakistan Land Revenue Act. This view finds support from PLD 1978 Rev. 28(32) which reads as under:-- "Section 167 of the Land Revenue Act, 1967 makes the provisions of the Limitation Act, 1908 applicable to appeals, reviews or revisions, in the matter of computation of the period of limitation.
This means that Part III of the Limitation Act which deals with computation of period of limitation shall apply to appeals under the That Development (Colonization) (Appeal and Revision) Rules, 1973. Part III, however, does not contain section 5 under which the period of limitation can be extended in certain cases. Apart from that section 29 of the Limitation Act which prescribes as to what portion of the Act shall apply to local and special laws in the absence of any direction in those laws themselves also does not extend the application of section 5 to the proceedings under these laws. It, therefore, follows that section 5 is not applicable to computation of a period for appeals under the Land Revenue Act and, a fortiorari, under the Thal Development Authority (Colonization) (Appeal and Revision) Rules, 1973. The same view has been taken in Nawab Sir Mehr Shah v. Lt. Dewan Sahib (1944) 23 LLD 5. Thus in the instant case the benefit of section 5 could not be taken for condonation of delay in filing the appeal before the Commissioner nor any section of Part III of the Limitation Act could be invoked in aid for that purpose. There for, the appeals before the Commissioner which were filed after about six years of the impugned orders without showing any ground on which exception from limitation could be claimed were not entertain able and should have been dismissed on the short ground of limitation." This view further finds support from PLD 1978 Rev. 41 (50). The relevant observations are as under:- "As regards the point of limitation.It may be observed that there can be no condonation of delay under section 5 of the Limitation Act, where an appeal or application is filed under the provisions of Land Revenue Act. 1967 which provides a special period of limitation of its own. Unless .Therefore, the case is brought under one of the exemptions of Part III of the Limitation Act which deals with computation of a period of limitation, the delay in filing an appeal or application for review cannot be excused by virtue of section 29 of Limitation Act read with section 167 of the Land Revenue Act, 1967." This view further finds support from a case reported in PLD 1976 Azad J&K (sic).
13. The epitome of the aforesaid discussion is, that this writ petition is accepted and the orders passed by the learned Member, Board of Revenue on April 23, and November 29, 1999, are hereby declared to be without lawful authority.