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Petitioner: THE PROVINCE OF EAST PAKISTAN VS Respondent: THE PROVINCE OF EAST PAKISTAN
Court Name: Supreme Court of Pakistan Judge(s): Waheeduddin Ahmad, Sajjad Ahmad Jan, Muhammad Yaqub Ali Khan Title: THE PROVINCE OF EAST PAKISTAN vs THE PROVINCE OF EAST PAKISTAN Case No.:Civil Appeals Nos, 56-D, 57-D, 58-D and 59-D of 1968., Civil Appeals Nos,
JUDGMENT
Reported As: PLD 1971 Supreme Court 82 Result: Appeals dismissed Judgment JUDGMENT WAHIDUDDIN AHMAD, J.--This judgment will dispose of four Appeals Nos, 56-D, 57-D, 58-D and 59- D of 1968, which arise out of the judgment of the High Court of East Pakistan at Dacca, in First Appeals Nos, 11, 21, 22 and 61 of 1958, dated the 3rd December 1965. The appellant, Province of East Pakistan, acquired the rent-receiving-interest in the Wakf Estates of the respondents in the year 1955 under section 3(1) of the East Bengal State Acquisition and Tenancy Act, 1950, by four separate notifications. The validity of these notifications were challenged in four suits filed by the respondents. Suit No, 87 of 1956 (120 of 1955) was filed by Nawab Khawaja Habibullah Bahadur as Mutwalli. Suit No, 75 of 1955 was filed by Muhammad Haider Ali Khan Panni, Mutwalli of the Karatia Muhammad Haider All Wakf-Al-Awlad Estate. Suit No, 75 of 1956 was filed by Nawab Khawaja Habibullah Bahadur, Mutwalli and Suit No, 89 of 1956 was filed by .Maulvi Khurram Khan Panni, Mutwalli of the Karatia Wazed Ali Wakf Estate. It was prayed in these suits that the East Bengal State Acquisition and Tenancy Act, 1950, be declared as illegal and ultra vires and all steps taken by the East Bengal Government for the acquisition of the Wakf Estates b.; held as invalid. It was further prayed that the notifications by which the Wakf Estates were acquired were illegal and invalid because they were not published before the date on which they were to come into effect. The validity of the notifications was also challenged on the ground that they were repugnant to the fundamental rights guaranteed by the Constitution of 1956 and the above mentioned enactment was void in law. The acquisition proceedings were also
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challenged on the ground that it was against the principle of the permanent settlement and Wakf being dedicated to God Almighty could not be acquired. A permanent injunction was also claimed against the appellant-Government restraining them from taking any steps for realising any rent or profit from the Wakf Estates and from in any way interfering with the management of the Wakf Estates in respondents' possession. These suits were decreed by the Subordinate Judge, Mymensingh on different dates. The East Bengal State Acquisition and Tenancy Act of 1950 was held to be invalid, ultra vires and the notifications under which the properties were acquired were also held to be ultra vires null and void. It was also held that the notifications were not published in the official Gazette on the dates on which they were to come into effect and, therefore, the Wakf Estates have not been properly acquired. The Province of East Pakistan was permanently restrained from taking possession of the Wakf properties in question. These judgments were challenged in four separate Appeals Nos, 11, 21, 22 and 61 of 1958 in the Eest Pakistan High Court which were disposed of by a common judgment dated the 3rd December 1965. The High Court held that as the Constitution of 1956 has been abrogated, the fundamental rights were no longer in force and, therefore, the East Bengal State Acquisition and Tenancy Act, 1950, was not void but was a valid piece of legislation. It, however, held that the notifications issued for the acquisition of the Wakf Estates belonging to the respondents were not published in the official Gazette on the dates by which they were to come into effect and held them as invalid. On this view of the matter, Appeal No, 11 of 1958, Appeal No, 21 of 1958 and Appeal No, 61 of 1958 were dismissed. Appeal No, 22 of 1958 was allowed because in this case, the question of non-publication of notifications by which the Wakf Estates were acquired was not pressed at the time of the hearing of the suit. This judgment of the High Court is challenged in these appeals by special leave. Leave was granted by this Court on the 20th May 1966, for consideration of several law points raised by the parties. A preliminary objection has been raised on behalf of the respondent in Appeal No, 57-D of 1968, that it is barred by 1208 days and is liable to be dismissed for this reason. The allegation of the respondent is that the appeal was filed in the High Court on the 11th November 1957. Muhammad Haider Ali Khan Panni, the sole plaintiff-respondent died on the 16th April 1962, while the appeal was pending for hearing in the High Court. His legal representatives were brought on the record on the 2nd July 1962. The appeal was heard and dismissed on the 3rd December 1965. Petition for special leave to appeal was filed against late Muhammad Haider Ali Khan Panni on the 24th March 1966, who had already died about four years before the institution of petition and leave was obtained against a dead person. The submission of the respondent is that the special leave to appeal has been wrongly granted to the appellant on tie appeal filed against a dead person which is no appeal in the eye of law and is liable to be dismissed on this ground. On the 12th November 1968, the appellant filed an application for substitution alleging that Muhammad Haider Ali Khan Panni died on the 3rd August 1968. On the 10th June 1969 the Court pointed out that it was not a case of substitution. Thereupon, the appellant withdrew the petition for substitution and on the 11th June 1969, filed another petition stating that on receipt of the counter-affidavit it transpired that this was not a case of substitution but amendment of the cause title of the appeal. As the heirs have long oven substituted at the High Court stage, the appellant moved an application for correction of the cause title which came up for hearing on the 16th June 1969 and it was allowed subject to objection of limitation . It is not disputed that an appeal against a dead party can be amended by bringing his legal representatives on the record. Except Sind and Upper Burma Courts, all other High Courts in this sub-continent have taken this view. I am not inclined to take a different view on this point. The contention of the respondent, however, is that the correction of the cause title after 1208 days means the bringing of the legal representatives or filing of the appeal after 1208 days and the ..aid
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delay having not been condoned by this Court, the appeal is not maintainable and is liable to be dismissed with costs. In reply, the appellant have not given any explanation for condoning the delay of 1208 days. Their only contention is that on the 19th October 1968, the Supreme Court sent a notice to the Attorney this Muhammad Haider Ali Khan Penni respondent died on the 3rd June 1968 and steps may be taken to bring his legal representatives on the record. It was in pursuance of this that the appellant moved an application for bringing the legal representatives of the deceased on the record. According to the appellant, the mistake on their part was bona fide and the delay in correcting the cause-title may be condoned. After hearing the learned counsel for the parties I am satisfied that no case has been made out to condone the delay of 1208 days. The appellant was negligent in pursuing the remedy in this Court. They filed the appeal against a dead person and corrected the Cause-title after a lapse of 1208 days. In the absence of any satisfactory explanation, the appeal is barred by 1208 days. It is accordingly dismissed with costs. Coming now to the merits of the case, it will be noticed that the question whether the East Bengal State Acquisition and Tenancy Act, 1950, was an ultra vires piece of legislation has been finally settled by a decision of this Court in the case of The Province of East Pakistan and another v. Md. Mehdi Ali Khan . It was held by this Court according to the majority view that the Constitution of 1956 having been abrogated, the fundamental rights were no longer in existence and the write petitions filed to challenge its validity had abated because of the provisions of clause 7 of Article 2 of the Laws (Continuance in Force) Order, 1958. This question was further considered in the case of Tanbir Ahmad Siddiky v. The Province of East Pakistan and others . It was held in that case as under:-- "The first point raised by Mr. Hamidul Huq Chowdhury was that the decision of this Court in Muhammad Mehdi All Khan Panni's case merely amounted to a declaration that the remedy by way of a writ was barred and that the right of the appellants to retain the property in dispute, remained intact. This position is untenable. The decision in that case proceeded on the principle laid down in State v. Dosso PLD 1958 SC (Pak.) 533. It was held therein that with the disappearance of the late Constitution and its replacement by a new legal Order which excluded that Constitution, all proceedings in cases in which the validity of a law had been called in question on the basis of Fundamental Rights, embodied in the late Constitution had abated, under clause 7 of Article 2 of the Order. It was laid down clearly in that case that the Fundamental Rights had not survived the successful Martial Law Revolution. On that point there was no difference of opinion among the Judges of this Court. The minority view in that case only expressed a doubt as to whether the concluding words of clause 7 of Article 2 of the Order, had the effect of bringing to an abrupt end, the proceedings in the petitions before the High Court, commenced by the affected parties at a time when the late Constitution was in force. My Lord the Chief Justice considered in that case that the writs alled unless the judgment of the High Court was itself open to question, on the point of the relevant law's repugnancy to Article 5 of the late Constitution. After examining the position in this regard, he reached the conclusion that the High Court's order could not be. The only point, therefore, that requires considerations in these appeals is whether the High Court was right in affirming the decision of the Subordinate Court that the notifications on the Basis of Which the Wakf Estates in these cases have been acquired were duly published in the Official Gazette. Mr. Asrarul Hussain, learned counsel for the appellant has raised an alternative plea. He argued that even assuming that the impugned notifications were bad there was a notification of Whole sale acquisition of these estates dated the 2nd April 1956, which came into effect on the 12th April 1956 and under this notification the wakf properties no vest in the Provincial government from this date. This alternative plea was raised in the High Court. It will be convenient to dispose of this point first. It was also urged before the High Court that it should take notice of subsequent events. In this1 2
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connection, it was argued in the High Court on behalf of the appellant that even if it be held that the notify cations in question were not duly published, the Wakf Estates must be held to have been acquired by virtue of the general notification dated the 7th April 1956 and on publication of notification under section 43 of the Act after preparation of Compensation Assessment Rolls in regards to these Estates. In order to support this contention they filed application in each of the appeal praying for admission of some Gazette notification published under the provisions of the Sind Act. The learned Judges of the High Court rejected this plea with the following observations:-- "After hearing the learned counsel for the parties, we have felt that the point raised by the learned Advocate-General does not fall within the scope of the enquiry in these appeals. The Courts below in three of the suits have found that the notification on the basis of which the Provincial Government claimed to have acquired the Estates, were not published. It has further been found, on the authority of the decision of the Supreme Court in the case of Tibendra Kishhore Achharyya Cnowdhury and 58 others v. The Province of East Pakistan and another PLD 1957 SC (Pak.) 9 that the provisions of the Act, so far as they relate to the acquisition of wakf properties, are ultra vires and void. In this view, the suits have been decreed and the Province of East Pakistan has been permanently restrained from taking possession of the Wakf Estates. While we feel that it is necessary for us to consider how far the decrees for injunction in the absolute form they have been passed are maintainable in view of the later decision of the Supreme Court in the case of The Province of East Pakistan and others v. Md. Mehdi Ali Khan and others P D L 1959 SC (Pak.) 387 we do not see why it is necessary to enter into the question whether the properties of the Wakf Estates have vested in the Provincial Government on account of the actions taken under the Act subsequent to the decrees in these cases." They further observed as under:-- "Learned Advocate-General has drawn our attention to the decision in the case of Lachmeshwar Prasad Shukul and others v. Keshwar Lal Chaudhury and others AIR 1941 FC 5, in support of his contention that events subsequent should be taken into consideration to see whether the reliefs granted to the plaintiffs can be sustained. In this case the Federal Court took into consideration an amendment of the law which was made during the litigation in question. This case, in our view, therefore, is no authority for the proposition contended for by learned Advocate-General before us. In the case of Zahur Din and another v. Jalal Din and others AIR 1944 Lah. 319, a Full Bench of the Lahore Hgih Court has observed that no doubt Courts do very often take notice of events that happen subsequent to the filing of suits and at times even those that have occurred during the appellate stage and permit pleadings to be amended for including a prayer for relief on the basis of such events but this ordinarily done to avoid multiplicity of proceedings or when the original relief claimed has, by reason of change in the circumstances, become inappropriate and not when the plaintiff's suit would be wholly displaced by the proposed amendment and a fresh suit by him would be barred by limitation although in cases where it would not be so barred, different considerations might come into play and a different view might be possible. The case of Sayeedur Rahman v. Chief Election Commissioner, Dacca and 2 others PLD 1965 SC 157 is also a case of change of law during the pendency of the proceedings in question. We have already noticed that the Courts below in three of the suits, besides finding that the notifications were not published, have found that the provisions of the Act relating to acquisition of wakf properties are void. We shall consider how far this latter finding can be maintained. If this finding is not upheld, the only relief on the findings that the notifications were not published, to which the plaintiffs on the pleadings would be entitled to, is a declaration that, on the basis of these notifications, the Estates did not vest in the Provincial Government. Mr. Brohi, who appears for the plaintiff-respondents in three of the appeals, and Mr. Hamidul Huq, who appears for the plaintiff-respondent in the fourth appeal, have accepted this position, and in that view, we fail to see how in these appeals it is
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necessary for us to enter into the question whether the Estates have otherwise vested in the Provincial Government. Regard being had to these facts, we have not accepted the prayer for admission of additional evidence and propose to consider only how far the reliefs granted can be maintained on the pleadings in these cases." The question for consideration, therefore, is whether the appellants are entitled to raise a point which is of their own creation after the suit has been instituted, namely, that the Wakf Estates should be declared to have been acquired by virtue of general notification dated the 7th April 1956 and on publication of notification under section 43 of the Act after preparation of compensation assessm ent rolls in regard to these Estates. In my opinion, the High Court was perfectly justified in rejecting the prayer of the appellant to raise this point at the stage of the appeal. It is not a case of amendment of law during the pendency of the suit or the appeal. It is a case where the appellant themselves by their own act have issued another notification to defeat the suit of the respondents. It seems to me that by acting in such a manner they are not entitled to defeat the claim of the respondents by raising a new plea at the appellate stage. The Privy Council considered this aspect of the case in Mst. Anundmoyee Chawdhourayan v. Sheeb Chunder Roy . Their Lordships observed as under:-- "The first and most important question is, whether the decision of the Principal Sudder Ameen was, when pronounced a correct decision of the issues then pending before him between the then parties to the suit. No subsequent event or devolution of interest can affect this question ; because to give effect to these, should justice require it would be the office not of an appeal but of some supplemental proceedings." The ordinary rule is that the right of the party must be determined as on the date of the suit and not on the basis of right which accrued to them after the institution of the suit. It is open to the appellant to rely on this ground in separate proceedings for taking possession of the properties acquired under the above mentioned general notification and it will be open to the respondents to challenge the validity of thin notification in those proceedings. It will be noticed that the Courts below have only granted relief to the appellant on the basis of the notification alleged to have been issued and published under section 3(1) of the East Bengal Estate Acquisition and Tenancy Act, 1950. There is no restraint on the appellant to take action against the respondents on the basis of any other ground that might have arisen on account of certain actions taken by them under the provisions of the said enactment. In these circumstances I am not inclined to allow the appellant to raise this point in the appeal before this Court. The only question that now remains for consideration is whether the notification issued under section 3(1) of the East Bengal State Acquisition and Tenancy Act, 1950, were published before the date they were to come into force. Section 3 (1) of the East Bengal State Acquisition and Tenancy Act, 1950, reads as under:-- "3(1). At any time after the commencement of this Act, it shall be lawful for the Provincial Government to acquire,by notification in the official Gazette, with effect from such date as may be specified in the notification (hereinafter referred to as the notified date),-- (i)all interests of such of the rent-receivers as may be specified in the notification, in their respective estates, taluks, tenures, holdings or tenancies, as the case may be, in any district, part of a district or local area, and (ii)all interests of all rent-receivers whose properties are, for the time being, under the management of the Court of Wards under the Court of Wards Act, 1879, in their respective estates, taluks, tenures, holdings or tenancies, as the case may be, including all their interests in all sub-soil and rights to minerals in such estates, taluks, tenures, holdings or tenancies." The definition of notification given in section 2(18) of the said Act is as under :--3
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" Notification' means a notification published in the official Gazette." The contention of Mr. Asrarul Hussain, learned counsel for the appellant is that the mere printing of the notification is sufficient for its publication. According to him, the mere production of the notification is a sufficient proof of the fact that it has been published. The contention of the learned counsel has not impressed me. Under section 2(18) of the East Bengal State Acquisition and Tenancy Act, 1950, notification means a notification published in the official Gazette. Under section 78 of the Evidence Act, a notification can be proved by production of a copy of the Gazette. Under section 114(E) of the Evidence Act, there is a presumption that all judicial and official acts have been regularly performed. Monir, in his Principles and Digest of the Law of Evidence Act (4th Edition), at p. 682, has stated as under:-- "There is no presumption under section 114(E) that any publication has been made under section 222 or under section 234 of the Bengal Municipal Act or under section 99, Bengal Cess Act, or under Rule 119 of the Defence of India Rules. But when an order is proved to have been published in the Gazette, it may be presumed that the publication of the order was in accordance with the Rules. The onus of proving that an order under Rule 56 of the Defence of India Rules was lawfully issued by an officer properly empowered is on the prosecution and a mere statement by the Sub-Inspector that such an order was published cannot lead to the presumption that the requisite order must have been made by a competent authority. But when once a publication under a Municipal or Local Boards Act is proved, there is a presumption that the publication was made after the necessary formalities. Where an officer has himself signed a notification which is published in the Gazette, it must be presumed that the publication is in the manner in which the officer has directed it to be," The learned counsel for the appellant also referred us to section 81 of the Evidence Act which only says that there is a presumption as to the genuineness of any official Gazette if such document is substantially in the form prescribed by law and is produced from proper custody. In my opinion, in order to prove the publication of a notification it is not only necessary to prove that the notification was inserted in the official Gazette but there should also be proof that it was published in the manner usually adopted for publishing such documents. This point was considered by a Division Bench of the Bombay High Court in the case of Balkrishna Anant Hirlekar v. Emperor . In that case, the question was whether an association has been declared unlawful under the Criminal Law Amendment Act, 1908. It was urged before the Bombay High Court that all that is required is that the declaration should appear that is to say, that it should be inserted in the official Gazette. This contention was repelled by Beaumont, C. J. In this connection, the learned Chief Justice observed at p. 133 as under : - "Now I can find nothing in the Act which makes the proof of knowledge in the accused that the association is unlawful a condition precedent, to a prosecution for being a member of such association. But where an association heretofore lawful is made unlawful, it appears to me that the most elementary principles of justice and fair play require some notice of the illegality to be given to the members of the association so that they may regulate their conduct accordingly. I think that the Legislature has provided for such notice by making it necessary to notify the declaration of the illegality in the official Gazette. The official Gazette is the normal means of communicating Government intention to the public. The learned Government pleader has argued, and I think that the paucity of evidence in this case compelled him to argue, that all that is required is that the declaration should appear, that is to say, that it should be inserted in the Gazette. I do not take that view. The word used in section 16 is 'notification' and not 'insertion'. 'Notification' is defined in Webster's Dictionary as-- Act of notifying; act of making known; an intimation or notice; esp., act of giving official notice or information by words, by writing, or by other means' so that the essence of notification is the giving4
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of notice, and, in my opinion, the words 'by notification in the official Gazette" mean simply 'by giving notice in the official Gazette' One can illustrate the point under consideration by a simple illustration. Supposing the Government make a declaration that a particular association is unlawful and instruct the Government printers to print an extraordinary official Gazette containing that declaration. Supposing that some change in the political situation then takes place, and the Government alters its view. It communicates with its printers and finds that the Gazette has been printed and is ready for publication, but that nothing further has been done. The Government then instructs the printers to send all the copies to the Secretariat, and there they are…
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