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Petitioner: Sardar ASHIQ MUHAMMAD KHAN MAZARI AND 3 OTHERS VS Respondent: CHAIRMAN, JUDGMENT
Court Name: Lahore High Court Judge(s): Maulvi Mushtaq Hussain Title:Sardar ASHIQ MUHAMMAD KHAN MAZARI AND 3 OTHERS vs CHAIRMAN,
JUDGMENT
Reported As: PLD 1977 Lahore 461 Result: Petition accepted Judgment JUDGMENT ' MUSHTAQ HUSSAIN, J.-This petition has been filed by Sardar As* Muhammad Khan Mazarl, his son Sardar Wall Muhammad Khan Mazari, his daughter Sharin Mehr-un-Nisa, and his wife Durre- Shahwar, against the Chairman, Federal Land Commission and others praying for a declaration that the proceedings taken by respondent No, 1 in relation to the petitioners are without jurisdiction, without lawful authority and of no legal effect. It has been further prayed that he be restrained from proceeding further in the matter since he is not permitted to do so under the provisions of law. It has also been prayed that order dated 13th of August, 1974, passed by respondent No, 1 disposing of the preliminary objections raised by the petitioners be declared to have been passed illegally and that it is of no legal effect. 2. The petitioners are landlords and have filed declaration under M. L. R. 115 in respect of land owned by them. Cognizance of the declarations was taken by the Punjab Land Commission and the Chief Land Commissioner and certain order were passed in January/February, 1974. 3. After these orders had been passed, Sidhu Chongli. a resident of Bungalow Ichha, Tehsil Rajanpur, District Dora Gbazi Khan, where the land in dispute blonging to the petitioners is situated, filed certain objections. On the basis of these objections, respondent No, 1 issued a notice in the press on the l0th of August, 1974, calling upon the petitioners to appear before him on the 13th of August, 1974. This notice was issued in the purported exercise of "Revisional Jurisdiction" claimed by respondent No, 1. Any reasons or grounds for issuing the aforesaid notice were not adverted to at all in it except for the vague and bald assertion that there was suspicion regarding some
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transactions. These left the petitioners high and dry as to the cause for which they were called upon to appear before the Chairman, Federal Land Commission. 4. On the date of hearing, petitioner No, 1 having been served, filed the following preliminary objections before respondent No, 1 :- (a) Substituted service by publication in newspapers could be resorted to only if it was found and so recorded that the person concerned was deliberately avoiding personal service. Respondent No, 1 had no authority to have ordered substituted service in the first instance without making any attempt to serve the petitioners according to the normal method. It was concluded therefrom that respondent was acting mala fide, particularly, because of the "unholy haste" shown by trim in the matter of service; (b) the notice having been published on the 10th of August, 1974, should have ordinarily given enough time e.g. At least a month to enable them to appear before the Chairman, Federal Land Commission. The notice, however, directed them to appear within two days i,e, on the 13th of August, 1974, on pain of being proceeded against ex parte. Mala fides were alleged on this basis also; (c)the absence of any charges in the notice -which the applicant was supposed to answer on the 13th of August, 1974, converted the notice into a farce; (d) respondent No, 1 had already pre-judged the issue by making public announcements that he would resume the land from the petitioners and their family and distribute the same amongst the tenants. He had also condemned the aforesaid family while making these declarations in public and the newspapers had duly taken note of this. It was alleged on the basis of this averment that it would be a denial and a breach of the principles of natural justice relating to 'bias' if the Chairman, despite his conduct vis-a-vis the petitioners, heard the case and disposed of it; (e)the revisional jurisdiction of the Federal Land Commission was exerciseable only qua an order passed by an authority subordinate to it. The scrutiny of declaration forms was outside the pale of its authority wherefor the notice was shorn of jurisdiction and was a nullity. 5. Respondent No, 1 disposed of these objections by an order of even date in which he took up the stand that he held serveral positions, namely that of President of Pakistan People's Party, Punjab, and Minister of the Government of Pakistan; in the latter capacity he held a dual position since he was also a Chairman of the Federal Land Commission. He claimed that he had made the offensive speeches, copies of which had been filed before him of Exhs. R-A and R-B, in his capacity as President of the Pakistan People's Party and as a Minister of the Government of Pakistan. His speeches reflected the party manifesto and the Government Policy aimed at eliminating the Feudal and Capitalist exploitation. According to him "the very measure of the Land Reforms is aimed at breaking up of large estates and improve the economic well-being of the peasantary by transferring to them the resumed land." He also was of the opinion that since he had delivered these speeches before he assumed the office of Chairman of the Federal Land Commission, they did not stand in his way in deciding these cases on their own facts. 6. He did not agree that the Federal Land Commission was bereft of the power of scrutinizing declaration forms. 7. He repelled the objection as to service on the ground that the Civil Procedure Code was not applicable and that "the measure of Land Reforms being a revolutionary measure, their implementation has to be expedited." He declared that rules framed under sub-para. (3) of para. 4-A of M. L. R. 115 made service though notice published in any of the newspapers sufficient. He also observed that in any case, as a matter of abundant caution, the Deputy Commissioner had also been directed to effect personal service. He found that since the petitioner was present and no ex parte proceedings had been taken, this objection did not hold any water.
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8. He upheld the objection that the notice was too short and consequently adjourned the case to the 2nd of September, 1974, with a view to providing enough time to the petitioners'. 9. The petitioners are, however, not satisfied with granting of the adjournment either, and their grievance is that out of them, Durre-Shahwar, petitioner No, 4, was undergoing medical treatment in England at that time and despite their best efforts to persuade the Chairman to grant sufficient time to enable her to complete the treatment and return to her country for pursuing the case, their entreaties did not find favour with him. 10. They do not accept the correctness of the findings of the Chairman of the Federal Land Commission and have consequently challenged that order through this writ petition as has already been referred to above. 11. A preliminary objection has been raised by the Chairman of the Federal Land Commission in the written statement filed on his behalf which to the effect that since final orders have already been passed in the Case by the Chairman, Federal Land Commission on 26th of May, 1975, e attack on the preliminary objection dated 13th of August, 1974, ha oat its validity and that the petition should be dismissed as infructuous. 12. It has been admitted by respondent No, 1 that a petition, of which he has notice, had already been moved before this Court (C. M. 4 f 1975) for permission to take up fresh grounds, in the petition, arising from the final order passed by respondent No, 1. Even if this application a not accepted, the writ petition does not become infructuous as the question whether respondent No, 1 at all had any jurisdiction in the matter out of which this petition had arisen remains as alive as it was at any time ding by this Court that the order on the preliminary objections is not sustainable would affirm the position taken up by the petitioners that be as no jurisdiction and any further proceedings including the so-called al order passed by respondent No, 1 would automatically go by the board. The writ petition could have become infructuous only if its disposal it her way would have had no effect on the matter in issue. Since that is of so, it is not possible to uphold the objection of respondent No, 1 on his score. 13. Reference in this connection may be made to Gurmukh Singh and others v. Malik Shiv Ram and others (1). In this case it was categorically held that the right cannot be taken away by a final decree being passed neither before or after the presentation of an appeal from the preliminary (1) AIR 1935 Lah. 482 decree. It was held that if that appeal is accepted, the final decree falls with the preliminary decree. The case of a preliminary objection could without any fear of contradiction be equated with the passing of a preliminary decree in a civil suit. The objection taken by respondent No, 1 is consequently repelled. [AIR 1926 Lah. 534]. 14. The question whether respondent No, 1 could have ordered service of summons on the petitioners through post loses its importance by the fact that the petitioners presented themselves before respondent No, 1 on the first date of hearing fixed by him either personally or through counsel. They cannot, therefore, claim to have suffered any prejudice from the irregularity alleged by them to have been committed by respondent No, 1. In the absence of such prejudice the petitioners do not have any cause of action on that score. It would have been a different matter if the petitioners had remained ignorant of the notices published in the newspaper and had consequently absented themselves from the hearing leading to an ex pane order against them. That has fortunately not happened. 15. Be that as it may, the objection of the petitioners on this score is not well-grounded in law. They have referred to the provisions of the Punjab Land Reforms Rules, 1972. Rule 6 of these Rules provides for the issuance of summons and their service in accordance with the provisions of the Code of Civil Procedure, 1908. These rules have been made by the Punjab Land Commission which is a body different from the Federal Land Commission which is constituted under section 4-A of the
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Land Reforms Regulations, 1972, while the former has been brought into existence under section 4. Section 4-A empowers the Federal Land Commission to make rules to regulate its procedure. The rules made by the Punjab Land Commission though binding upon it, cannot have the effect of overriding similar rules made by the Federal Land Commission in exercise of the powers conferred upon the latter by section 4-A(3). 16. Learned counsel for respondent No, 1 submitted that the Federal Land Commission framed its own rules which are known as "The Federal Land Commission Rules, 1974" and which were published in the Gazette of Pakistan, Extraordinary, Part II on the 5th of September, 1974. As against the provisions in the Punjab Land Commission rules applying the Civil Procedure Code in respect of service of process, rule 3(8) in Chapter 11 of the Federal Land Commission Rules, 1974, empowered the Chairman, Members and every officer of the Federal Land Commission exercising his functions under the Regulation for the purpose of making an enquiry or hearing a revision to summon and enforce the attendance of any person and to examine him on oath or affirmation. It further empowered them to provide manner of service for the expeditious disposal of the cases. 17. It has been contended on behalf of respondent No, 1 that provision has been made in pursuance of this power to effect service by publication in newspapers. Learned counsel referred to rule 4(7) (d) in Chapter III of these Rules which reads as follows:- "(7) Service of any notice, summons, or order issued or made under the Land Reforms Regulation shall be deemed to be sufficient if effected in any one of the following methods, namely- (d) by publication in a newspaper, or proclamation by beat of drum or other customary method in the locality." ' These Rules were published on the 5th of September, 1974, and by virtue of rule 1(2) came into force at once. In other words, they were not applicable retrospectively. The process in this case was published in the newspapers on the 10th of August, 1974, i,e, about 25 days before these Rules came into force and they cannot, therefore, sanctify it. Crazies in the Fifth Edition of his classic 'On Statute Law' observes at page 105 that t "If a statute is passed for the purpose of enabling something to be done, but omits to mention in terms some detail which is of great importance (if not actually essential) to the proper and effectual performance of the work which the statute has in contemplation, the Courts are at liberty to infer that the statute by implatation empowers that detail to be carried out. Thus in Cookson v. Lee (1854) 23 L J Ch. 473, a private act vested certain lands in trustee for the purpose of enabling them to sell the lands for building purposes, but the Act contained no express power to expend any portion of the purchase moneys in setting out the lands or in making roads. Under these circumstances the Court held that, having regard to the object of the Act namely, the sale of the property as building land such power ought to be implied." The importance of service of process for carrying the provisions of paragraph 29 into effect can hardly be underestimated. Particularly in view of its second proviso making the affording of an opportunity of being heard a condition precedent for revising an order affecting any person. That being so, the power to issue process would inhere in the Commission. D Service of process by publication in press is a known and accepted method and its use in this case cannot be nullified on any reasonable ground. 18. The notice referred to above does not contain any reason whatsoever wherefore the present petitioners have been asked to appear Mort respondent No, 1 except the meaningless reference to "suspicion". It is axiomatic that if a person has to answer a charge he must be apprised clearly of its contents which should be elaborate enough to make the respondent understand its gravamen and give him sufficient indication of the case that he is supposed to answer so that he is in a position to meet the same in a manner such as to make his defence clear and be able to support it with the necessary evidence. It is not and could not have been denied by respondent No, 1 that the
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notice impugned before this Court did not even remotely fulfil these requirements and contained just a b rid direction to appear before the Commission. This must have left the petitioner guessing as to the necessity for summoning them and they would have not even the slightest indication of the case that they would be expected to meet on appearing before the Commission. This point was taken up in the preliminary objections before respondent No, 1 and a perusal of paragraph 1(d) of his order which runs as follows, will clarify the whole situation : "The learned counsel has also contended that sufficient time was not available for the preparation or the cases as the notices were published on the 10th of August, 1974. He also urged that the grounds for the suo moto revision have not been made known to them. These are valid objections. The cases are, therefore, adjourned to 2nd of September, 1974, to provide them sufficient time to prepare the cases. The learned counsel for the respondent has now been apprised of the grounds for calling for the record of the cases in exercise of suo motu revisional jurisdiction as explained above." The objection having thus been upheld and the grievance relating to the ignorance of the petitioners about the grounds having been removed, the very basis of the objection taken up before me is knocked out. 19. The purpose of the issuance of notice to a party whose rights are to be determined is that he should not be condemned unheard. Hearing of course requires that the person to be heard should be in the know of the case that he has to meet. So far as the principles of natural justice are concerned, therefore, the requirement has been amply fulfilled; now for the law itself. 20. Notwithstanding what has been stated above, if there was a provision in Martial Law Regulation 115 requiring specification in the notice of the ground on which action is sought to be taken the question would adopt a completely different hue. It may in that case be argued that since the notice does not conform to the statutory requirements it is hit by the dictum of Nazir Ahmaa's case (1) which requires that action to be valid must conform to the letter and spirit of the law which is sought to be invoked and that it should proceed either in accordance with it or not at all. 21. Paragraph 29 of the Land Reforms Regulation, 1972 confers upon the Federal Government, or any person authorised by it in that behalf, to call for the record of any case or proceedings described in it for the purpose of satisfying itself or himself about the correctness, legality or propriety o such an order. The second proviso requires that : "No order shall be passed under this paragraph revising or modifying an order affecting any person unless such person has been afforded an opportunity of being heard." This does not provide for the form which the notice must take. So long, therefore, as "an opportunity of being heard" is provided in accordance with law the mere fact that a notice has nut been prepared in a particular fashion would not nullify the proceedings or detract from the validity of the order passed in such proceedings. 22. In these circumstances, the petitioners' grievance against the absence of the grounds from the notice on which action was sought to be taken does not have the backing of law and can, therefore, not be upheld. 23. It is not denied that Dune-Shahwar the wife of petitioner No, 1 who is herself petitioner No, 4 in this case, was undergoing medical treatment in London at the time the notice was received. It was not, however, asserted that de was not represented before respondent No, 1 in the impugned proceedings by counsel and Mukhtar. It has been rightly submitted before me on behalf of respondent No, 1 that keeping in view the status of the petitioners, the fact that petitioner No, 4 is a lady and the normal manner in which such large estates, as the one in question, are managed by absentee landlords, the lady could not be supposed to be knowing anything about the matters involved and could not be expected to assist or help (I) A IR 1936 P C 253 (2)
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the Commission, her counsel or her Mukhtar in the preparation of the case. Her husband, formerly a high officer in the Government of this country, would be the only person out of the four of them who could respresent the case and help in its preparation and it is not denied that he did so Hypertechnically speaking, it may be correct that petitioner No, 4 has her own individual identity in the eye of law and that she must have been afforded an opportunity to take personal interest in the case. ' In the facts and the circumstances of this case, however, it would amount to making a fetish out of a technicality divorced from all actualities. It has not been demonstrated, even remotely, that the absence of the lady from this country in any manner affected her rights which were being adjudicated upon in the impugned proceedings. It cannot be lost sight of that this Court is dealing with this case in the exercise of its Special Original Jurisdiction, which, though enshrined in the Constitution, has equitable over-tones, and orders passed by statutory tribunals can hardly be tempered in the exercise of it, unless a case of lack of lawful authority could be made out. The objection of the petitioners on this score also can, therefore, not be maintained. 24. Martial Law Regulation 115 was gazetted on the 11th of March, 1972. It was extensively amended by the Land Reforms (Amendent) Act LX1I of 1973; this can be found in PLD 1973 Central Statutes at page 623. 25. The Federal Land Commission which has already been set up before the 13th of August, 1973, without there being any authority to do so in the unamended Regulation, was validated by section 11 of this Amending Act which runs as follows:- "11. Validation.-The Federal Land Commission in existence at the commencement of this Act shall be deemed to have been constituted under the Land Reforms Regulation, 1972 aad everything done, action taken or order passed by the Federal Lard Commission shall be deemed to have been validly done, taken or passed, as if this Act were in force on the day on which the Federal Commission was constituted or such thing, action or order was done taken or passed." 26. Section 3 of this Amending Act inserted a new paragraph 4-A in the Land Reforms Regulation of 1972. This section runs as follows:- "4-A. Constitution of Federal Land Commission, etc.-(1) For the purpose of this Regulation there shall be constituted a Commission to be known as Federal Land Commission, consisting of a Federal Minister nominated by the Federal Government, who shall be its Chairman, and not more than three members to be appointed by the Federal Government. (2) The Federal Land Commission shall exercise and perform all such powers and functions as may be necessary for the implementation of this Regulation throughout the areas to which it extends and shall, in particular,- (I) assist the Federal Government in deciding any dispute or difference referred to in sub- paragraph (7) of paragraph 4 and in giving any approval or direction under sub-paragraph (8) of that paragraph; (ii) assist the Federal Government in the exercise of its revisional powers urder paragraph 29 ; (iii) co-ordinate the work of the different Commissions to ensure that a uniform policy is followed in all the Provinces in implementing the provisions of this Regulation ; and (iv)lay down general guidelines to be observed by the Commission in carrying out their duties and functions under this Regulation and issue from time to time such instructions as may be considered necessary. (3) The Federal Land Commission may make rules to regulate its procedure and appoint its own officers and servants and confer powers upon, and assign duties, to them. (4) The Federal Land Commission may direct that the powers exercise-able by it under this peragraph may, subject to such conditions, if any, as may be specified by it, be exercised also by any of its members or officers empowered by it in this behalf."
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' As is apparent from the aforesaid provision, the Federal Land Commission was to consist of a Chairman who was to be a Federal Minister and not more than three members to be appointed by the Federal Government. It had the power to direct the exercise of specific powers by any of its members or officers. Since the authority to set up a Federal Land Commission was conferred for the first time by this statute and it was also charged with the duty to "assist the Federal Government in the exercise of its revisional powers under paragraph 29" the latter paragraph was re-framed by the authority of section 7 of this Act. The re-constituted paragrah runs as follows :- "29. Revisional powers of the Federal Government.-The Federal Government, or any person authorised by it in that behalf, may at any time, of its or his own motion or otherwise, call for the record of any case or proceeding under this Regulation which is pending or in which a Commission or any other authority appointed under this Regulation, other than the Federal Land Commission constituted under paragraph 4-A, has passed an order, for the purpose of satisfying itself or himself about the correctness, legality or propriety of such an order, and may pass such order in relation thereto as the Federal Government or, as the case may be, such person thinks fit r ' Provided that the Federal Government may, from time to time, specify the cases or class of cases in which it desires to pass final orders ' Provided further that no order shall be passed under this paragraph revising or modifying an order affecting any person unless such person has been afforded an opportunity of being heard ' Provided further that the record of any case or proceedings in which a Commission or other authority has passed an order shall not be called for under this paragraph by the Federal Government or the person authorised by it- (a) of its or his own motion, after the 14th day of August 1974, or (b) on the application of any aggrieved person made after the expiration of sixty days from the date of such order or from the enactment of the Land Reforms (Amendment) Act, 1973, whichever is later, excluding the time requisite for obtaining a copy of such order." ' The following questions arise for determination out of the…
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