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Petitioner: NABI BAKHSH ZEHRI VS Respondent: COLLECTOR NASIRABAD
P L D 1976 Karachi 571
P L D 1976 Karachi 571
Before Khuda Bakhsh Marri and Agha Ali Hyder, JJ
Mir NABI BAKHSH ZEHRI AHD 36 OTHERS-Petitioners
versus
COLLECTOR, NASIRABAD AND 62 OTHERS-Respondents
Constitutional Petition No. 530 of 1974, 1090, 1239 and 1238 of 1975, .decided on 16th February 1976.
(a) Land Reforms (Baluchistan Pat Feeder Canal) Regulation, 1972 [M. L. R. 117]-- -
Paras. 4, 7, 15 and Land Reforms (Baluchistan Pat Feeder Canal) Rules, 1972, r. 12 read with Land Reforms Regulation, 1959 [M. L. R. 64 of 1959], para. 6 and Land Reforms Regulation, 1972 (M. L. R. 115], para. 6-Vires of statutes-Power to make rules-All three Regulations bearing on same subject, Regulations other than Regulation 117 empower rule-making authority to make provisions for appeals Para. 15 of M. L. R. 117, though more exhaustive than its counter parts in other Regulation, instead of words "determination of appeals from, and application for the revision and review of," appearing in other Regulations, provides for "determination of applications and representations for the reconsideration and review of orders made " Held ; Legislature by not providing word "appeal" in para. 15 of M. L. R. 117 deliberately and consciously did not empower rule-making authority to make provision for appeal-Word "application"-Not broad enough to include "appeal"-Nor does word "representation" include appeal-[Words and phrases].
Hussain Bakhsh v. Settlement Commissioner, Rawalpindi and others P L D 1970 S C 1; Stroud's Judicial Dictionary, 4th Edn., p. 155; Horton v. Owen (1943) 2 All E R 560; Attorney-Genera! v. Lamplough (1878) 3 D 214; Pir Muhammad Farid Jan v. Colonisation Officer, Sukkur Barrage, Hyderabad and others P L D 1965 S C 399 and Maxwell on Interpretation of Statutes, 1953 Edn., p. 379 ref.
(b) Interpretation of statutes-
-- Retrospectivity-Right of appeal-Cannot, in absence of specific word in statute, be given under rules.
Muhammad Ishaq v. The State P L D 1956 S C (Pak.) 256; Province of East Pakistan v. Nur Ahmad and another P L D 1964 S C 451; Hakimuddin v. Government of West Pakistan and another P L D 1960 Lah. 709; Azhar Ali Shah v. Nur Muhammad and others P L D 1960 Lah. 728; Dad Muhammad Khan v. Bassa P L D 1965 Lah. 77 and Craies on Statute Law, 7th Edn., p. 302. rel.
(c) Interpretation of statutes-
-- Mere provision of section of statute declaring Court to have no jurisdiction - Would not divest High Court of its inherent power to decide whether or not impugned rule made within four corners of statute itself.
Khalid M. Ishaque for Petitioners.
Mirza Mohammad Ahmed, A.-G., Baluchistan with Irshad Mohd. Khan,. 4. S. D., Federal Land Commission for Respondents.
Dates of hearing: 22nd, 28th and 29th January 1976.
JUDGMENT
KHUDA BAKHSH MARRI, J.-These 4 Constitutional Petitions under Article 199 of the Constitution were heard together and will be disposed of by this single judgment as the respondents in all the cases are the same and the same legal points are involved in these petitions.
2. The facts shortly are that the petitioners claim to be owners of certain land in district Kachhi of Pat Feeder Area in Baluchistan. The district since had been divided into 2 districts of Kachhi and Nasirabad. By Martial Law Regulation No. 117 (Land Reforms Baluchistan Pat Feeder! Canal) Regulation, 1972 it was declared under paragraph 4 that all land in the district of Kachhi (the then district Kachhi) is and has always been State land and vests in Government free from all encumbrances. Under para graph 7 of the aforesaid regulation it was provided that only a person who immediately before coming into force of the Regulation had a right or interest in any land resumed under the Regulation may within 60 days of the coming into force of the Regulation apply to the Deputy Commissioner (later on amended to read as "Land Reforms Officer") within whose district such land is situated for grant of land to him. It was further provided that Land Reforms Officer after such enquiry as he may deem necessary, and if satisfied that the said person had a valid and subsisting right, grant to him the land= resumed under the Regulation. The petitioners filed applications before the Deputy Commissioner, Karachi .under paragraph 7 of M. L. R. 117. On behalf of Collector Kachhi a reply was filed. The petitioners thereupon filed a replication, marked Annexure "C".
3. M. L. R. 117 was amended by the Land Reforms (Baluchistan, Amendment) Ordinance, 1973, whereby the words "Deputy Commissioner were substituted by "Land Reforms Officer" who was defined as an officer appointed as such by the Provincial Government. Accordingly the petitioners'' applications came up for hearing before the Land Reforms Officer at Jhatpat who consolidated all such cases and recorded evidence jointly and disposed of them in favour of the petitioners by his order dated 23-2-74. It may be noted that the respondents Nos. 4 to 63, zamindars of the area also filed applications that they should be made parties and evidence on their behalf was recorded by the Land Reforms Officer.
4. Under M. L. R. 117, there was no provision of appeal against the: order of Land Reforms Officer neither paragraph 15 of the Regulation: specifically gave to the Government any powers to make any rule granting the remedy of an appeal to any party. However, the Provincial Government framed the Land Reforms (Baluchistan Pat Feeder Canal) Rules, 1972, which were published in the Baluchistan Gazette, Extraordinary, dated 8-6-1972 and, by Rule 12 of the said Rules, an appeal was provided against an order passed, by Deputy Commissioner under paragraph 7 of the Regulation. Rule 12 is as under:-
"12.-(1) No appeal shall lie against the order of the Board of Revenue passed under para. 5(3) of the Regulation and the order so passed shall be final.
(2) Any person aggrieved by an order passed by the Deputy Commis sioner under para. (7) of the Regulation may file an appeal to the Board of Revenue.
(3) An appeal shall be presented within 10 days from the date of the order appealed against.
(4) The order passed in appeal shall be final."
5. It is the case of the petitioners that Rule 12 is ultra vires of the statute M. L. R. 117 of 1972, because no appeal lies against an order passed by Deputy Commissioner (Land Reforms Officer) passed under paragraph 7 of M. L R. 117 to challenge the order dated 23-2-1974, in favour of the peti tioners by the Land Reforms Officer, Kachhi, Annexure `D'. hence the appeals filed by Collector of Kachhi as well as respondents 4 to 63 purported to have been filed under Rule 12, are ultra vires to the statute itself.
6. Upon filing the appeals notices were issued to the petitioners . and it appears they were fixed before Member, Board of Revenue, Baluchistan on 22-6-1974. It may be noted that the appeals are still pending because in the meanwhile these constitutional petitions were filed and Interim stay was granted to the petitioners. It is also the grievance of the petitioners that the Land Reforms (Baluchistan Pat Feeder Canal) Rules, 1972 have been amended by notifications dated 14-5-1975 and 13-9-1975 of the Government of 'Baluchistan, Annexures "H" and "I". The changes brought by these ,amendments are that :
The time for filing of the appeals has been extended from 10 days to 20 days with retrospective effect and instead of one appeal from the order of the Land Reforms Officer to the Board of Revenue, two appeals have now been provided, one from the order of the Land Reforms Officer to the Commissioner, Sibi Division and a further appeal to the Board of Revenue from the order of the Commissioner, Sibi Division hi appeal. It was further provided by amending notification dated 13-9-1975, that all appeals pending before the Board of Revenue at the commencement of this amendment shall be transferred to the Commissioner, Sibi Division. Under rule 12(3) the aforesaid appeals filed by respondent No. 1 and respondents Nos. 4 to 63 have been filed before the Board of Revenue, have now been transferred to Commis sioner, Sibi Division who has fixed the hearing of the said appeals on 20-9-1975.
7. We have heard Mr. Khalid M. Ishaque, Advocate, for the petitioners and Mirza Mohammed Ahmed, Advocate-General, Baluchistan for the respondents, at some stages assisted by Mr. Irshad Mohammad Khan, O. S. D. at length, Learned counsel for the petitioners submitted that both the appeals filed by the Collector of Kachhi and individual respondents Nos 4 to 63, and other persons if any concerning the present petitions, before the Board of Revenue, are incompetent and void. That Rule 12 of the Land Reforms (Baluchistan Pat Feeder Canal) Rules, 1972 as amended by the notifications dated 14-5-1975 and 13-9-1975, is ultra vires of M. L. R. 117 and as such is liable to be declared as void and that by paragraph 15 of M. L. R. 117, power had been given to the Government to make rules but no power has been given under M. L. R. 117 to the Government to make any provision for an appeal against the order passed by the Land Reforms Officer and, as such, the said rule as well as the two appeals of Collector, Kachhi and the respondents Nos. 4 to 63 are incompetent and void and that by para. 15(2)(e), power has been given to the Government to make rules providing for matters relating to or connected with the presentation, hearing or determination of applications and representations for the reconsideration and review of orders made under the aforesaid Regulation. The said pro vision under M. L R. 117 does not contain, according to the counsel, any provision regarding appeals which clearly shows that the Legislature did not intend to make provision for appeals. It was also argued that as both Martial Law Regulations 117 and 115 relate to the provision about Land Reforms and Martial Law Regulation 115 was made on 11-3-1972 and Martial Law Regulation 117 was made on 13-3-1972 and by paragraph 6 of M. L. R. 115, a specific power has been given to the Land Commission to make rules "regarding matters relating to or connected with the presentation, hearing and determination of appeals from an application for the revision and review or orders made under the said regulations." The same authority making M. L. R 117 two days later intentionally omits the word 'appeal' in paragraph 15 of M. L. R. 117. This according to the counsel further confirms the petitioner's submission that M. L. R. 117 does not give the Government any power to frame rules providing for appeals against orders passed under M. L. R 117. To supplement his arguments learned counsel drew comparison with previous M. L. R. 64 wherein provision regarding appeals was specifically granted, to the Government to make rules relating to appeals. Para. No. 6 of M. L. R. 64 reads as follows:-
"Power to make rules.--The Commission may with the previous sanction of Government, make rules for carrying out the purposes of this regulation, including rules on matters relating to or connected with the presentation, hearing and determination of appeals from, and application for the revision and review of, orders made under this Regulation."
It was submitted that the legislative authorities are deemed to know the existing state of law. This shows that where the Legislature intend to grant power to the Government to make rules providing for appeals specific powers are given in the statute itself, but where the Legislature did not intend to grant any such power, the provision about appeal is deleted from the provision in the statute relating to rules, and that the right of appeal has to be conferred specifically by a law and without a specific confirment of such right no appeal lies. It was submitted that in the instant case, there being no specific provision in the statute and the provision regarding framing of rules not containing any specific provision for making rules relating to matters in connection with appeals, both the appeals, therefore, are incompetent and rule 12, itself, is ultra vires of M. L. R. 117.
8. The next question with regard to limitation of appeal was raised and it was submitted that in any case both the appeals are time-barred and could not be entertained because in rule 12(3), before its amendment, by amendment notification dated 14-5-1975 an appeal had to be presented within 10 days from the date of the order appealed against. But in the present case as the order of the Land Reforms Officer was announced in the presence of the parties on 23-2-1974, both the appeals having been filed after the expiry of the period of the limitation therefore, are time-barred. Even so the petitioners acquired valuable rights on the failure of the respondents to file appeals within the time provided by the rules. The respondent No. 3 has purported to amend the rules by extending, with retrospective effect, the period for filing the appeals from 10 days to 20 days. This action has been taken with the intention to bring the appeals of the respondents within time, and this amendment with retrospective effect by notification is, incompetent, without jurisdiction, illegal and void. This submission of the learned counsel should stand as such, because Mirza Mohammad Ahmed, Advocate-General, Baluchistan conceded that the provision under the rules which gives retrospec tive effect of filing appeals, was admittedly beyond their powers. It has now been well settled by this Court and the Supreme Court that rule-making authority has no powers to extend the rules with retrospective effect unless and until such powers is conferred by the statute itself, but such a provision is lacking here, therefore, learned Advocate-General had no option but to concede that rule-making authority had no power to make rule with retrospec tive effect.
9. The power to file appeal was challenged on another ground as well that is the appeal of Collector Kachhi is incompetent under the rule 12(2) because it gives a right to file appeal only to a 'person' to the Board of Revenue, but Collector of Kachhi cannot be deemed to be included in the term 'person' used in rule 12 of the Land Reforms (Baluchistan Pat Feeder Canal) Rules, 1972, and lastly prayer was made to declare the rule 12 of the Land Reforms (Baluchistan Pat Feeder Canal) Rules, 1972, as amended by notification dated 14-5-75, and 13-9-75, as ultra vices of M. L. R. 117 and void and declare the pending appeals filed by respondent No. 1 and other persons under rule 12 against orders of the Land Reforms Officer or before the Board of Revenue or before the Commissioner, Sibi Division, to be declared as incompetent, void and of no legal effect.
10. The question to be decided before us, therefore, is whether Rule 12 of Land Reforms (Baluchistan Pat Feeder Canal) Rules, 1972, is, ultra vires to section 15 of M. L. R. 117, power to make rules. Section 15 of M. L. R. 117 and section 12 of Land Reforms (Baluchistan Pat Feeder Canal) Rules, 1972 are given respectively as under:-
"Power to make rules.-(1) The Government may make rules for the purpose of carrying into effect the provisions of this Regulation.
(2) In particular and without prejudice to the generality of the foregoing powers, such rules may provide for-
(a) the determination of the price of land granted under this Regulation or referred to in sub-paragraph (2) of paragraph 5;
(b) the mode of recovery of such prices;
(c) the mode of ejectment of defaulters;
(d) delegation of powers under this Regulation ;
(e) matters relating to or connected with the presentation, hearing or determination of applications and representations for the reconsidera tion and review of orders made under this Regulation.
(f ) the conditions on which subsistence grants for life may be made under this Regulation;
(g) the manner and form of submission of applications under this Regulation."
"Rule 12.-(1) No appeal shall lie against the order of the Board of Revenue passed under para. 5(3) of the Regulation and the order so passed shall be final.
(2) Any person aggrieved by an order passed by the Deputy Commis sioner under para. (7) of the Regulation may file an appeal to the Board of Revenue.
(3) An appeal shall be presented within 10 days from the date of the order appealed against.
(4) The order passed in appeal shall be final."
Mr. Khalid M. Ishaque in this regard relied on Hussain Bakhsh v. Settlement Commissioner, Rawalpindi and others (PLD1970SC1). This was a case where the question of jurisdiction of the High Court to review its order in exercise of powers vested in it under Article 98 of the then Constitution, 1962, came into consideration where it was held "a proceeding under Article 98 of the Constitution concerning a civil matter being a civil proceeding relating to the High Court's original civil jurisdiction and section 114, C. P. C conferring power to review not having been made inapplicable to the High Court in the exercise of its original civil jurisdiction, the power to review an order made by the High Court in its writ jurisdiction will be available to it under the said section 114". Learned counsel relied on the passage, where it was held that "the right to claim review of any decision of a Court of Law, like the right to, appeal, is a substantive right and not a mere matter of procedure. An appeal as observed by Baranwell,, L. J., in the case of Sandback Charity Trustee v. North Staffordshire Railway Co., "does not exist in the nature of things; a right to appeal from any decision of any Tribunal must be given by express enactment".
11. For the proper appreciation of the contention raised by the learned counsel for the petitioners it is necessary to give the requisite provision with regard to power to make rules in Martial Law Regulations 64, 115 and 117. as they are in pert materia. In M. L. R. 64, the rule-making powers are provided under section 6 which are as under:-
"Power to make rules.-The Commission may, with the previous sanction of Government, make rules for carrying out the purposes of this Regulation, including rules on matters relating to or connected with the presentation, hearing and determination of appeals from, and applications for the revision and review of, orders made under this Regulation."
'In M. L. R. 115 of 1972 rule-making powers are given under section 6, which :are as under :-
"Power to make rules.-A Commission may make rules for carrying out the purposes of this Regulation, including rules on matters relating to or connected with the presentation, hearing and determination of appeals from, and applications for the revision and review of, orders made under this Regulation."
In M. L. R. 117 of 1972 rule-making powers are under para. 15 which are as under :-
"Power to make rules.-The Government may make rules for the purpose of carrying into effect the provisions of this Regulation.
(2) In particular and without prejudice to the generality of the foregoing powers, such rules may provide for-
"(a) the determination of the price of land granted under this Regulation or referred to in sub-paragraph (2) of paragraph 5;
(b) the mode of recovery of such price ;
(c) the mode of ejectment of defaulters;
(d) delegation of powers under this Regulation;
(e) matters relating to or connected with the presentation, hearing or determination of applications and representations for the reconsidera tion and review of orders made under this Regulation;
(f ) the conditions on which subsistence grants for life may be made under this Regulation;
(g) the manner and form of submission of applications under this Regulation."
12. Comparing the above three provisions in three different Regulations having on the same subject, it becomes clear that para. No. 6 of M. L. R. 64 is similar to para. No. 6 of M. L. R. 115 of 1972 and in both the paras. Rule making authority has been empowered to provide, apart from others, for appeals. However, section 15 of M. L. R. 117 is more exhaustive in nature compared to the above two Regulations and sub-clause (e) of the section appears to have been lifted from the above 2 paras. of M. L. Rs. 64 and 115. But instead of words "determination of appeals from, and applications for the revision and review of" it is provided "determination of applications and representations for the reconsideration and review of orders made." The word "revision" in this clause is not mentioned for the simple reason because under section 17 revisional powers specifically are given to the President or any person authorised by him.
13. The next question, therefore, for determination is whether the meaning of the words "determination of applications and representations for the reconsideration" can be extended and interpreted to give power to the rule-making authority as he did, to provide for right of appeal in the absence of specific mention of word 'appeal' in the section.
14. The argument of the learned Advocate-General that the word "application" is broad enough to include appeal as well, is further negatived by the definition given in Stroud's Judicial Dictionary, Fourth Edition at page 155 as:
"The right of appeal is only by statute. It is not in itself a necessary part of the procedure in an action, but is the right of entering a superior Court and invoking its aid and interposition to redress the error of the Court below. It seems absurd to denominate this paramount right, part of the practice of the inferior tribunal" (per Westbury C. A. G. v. Sillem, 33 L J Ex. 209; 10 H. L. Cos. 704).
It goes on to state that:-
"a motion before a Judge in Court to discharge or vary an order made by him in chambers is not an appeal, but a re-hearing (per Cotton L J Re Giles, 43 Ch. D. 395; Boake v. Stevenson (1895) 1 C H 358).
As to the word "application" Strouds at page 158 states that-
"includes the hearing of the action as well as the interlocutory proceed ings (International Financial Society v. Moscow Gas Co., 7 Ch. D."
It goes on to give example such as "application" for an advance (Irish Land Act, 1903), "application for review" (Workmen's Compensation Act, 1926). It is, therefore, abundantly clear that the words "application, representation" do not necessarily include and cannot be given wider interpretation so, as to include that word "appeal" which has a different procedure and consequences.
15. There is a little doubt that the Courts in certain circumstances where there are compelling reasons will interfere and have in the past inter fered with delegated authority and put a wider or narrower interpretation as required by particular circumstances. But this again is subject to well-known principles of interpretation. On the question of interpretation for delegated Legislature, Green M. R. said: "All that the Court can do is to see that the power which it is claimed to exercise is one which falls within the four corners of the powers given by the Legislature and to see that the powers are exercised in good faith". As to the ouster of the jurisdiction of the Courts, in Horton v. Owen ((1943) 2, All E R 560), it was held that "where a direction to perform certain work, which meant sending an unfit man .away from home, could not be objected to on the ground of unreasonableness of the direction were duly made. These cases illustrate the rule that a statutory order or regulation is. not invalid on account of unreasonableness, although a bye-law may be". What is the statutory value of a schedule Brett L. J. In Attorney-General v. Lamplorgh ((1878) 3 D. 214), has this to say :-
"A schedule in an Act is a mere question of drafting, a mere question of words. The schedule is as much a part of the statute, and is as much, an enactment, as any other part, but if an enactment in a schedule- contradicts an earlier clause the clause prevails against the schedule."
16. As to the forms in a schedule it is stated that "forms prescribed by rules of Court are not construed as limiting or derogating from the rules or Act under which they are prescribed. They bear the same relation to rules as. schedules do to Acts".
17. He relied on Peer Muhammad Farid Jan v. Colonisation Officer Sukkur Barrage, Hyderabad and others (P L D 1965 S C 399 ), wherein it was held that "an appeal is the creature of a statute and must be confined within the limits imposed by the relevant statute. Under section 203 of the Act. an appeal from an order passed by a "Revenue Officer" under the Act, would lie to his immediate superior but the Revenue Officer who heard it, was clearly not in, that position above the Assistant Revenue Officer, since both of them were invested with powers of a Collector. The order of the Revenue Officer being itself a nullity, it was inapt to make it the "subject of an appeal, without canvassing the point of jurisdiction of the Officer hearing the first appeal" He relied on Muhammad Ishaq v. The State (P L D 1956 S C (Pak.) 256), wherein referring to A I R' 1927 P C 242…
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