Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: Mst. FATIMA- VS Respondent: THE FEDERAL GOVERNMENT OF PAKISTAN THROUGH THE
Court Name: Sindh High Court Judge(s): Abdul Qadir Sheikh, Mir Khuda Bakhsh Marri Title: Mst. FATIMA- vs THE FEDERAL GOVERNMENT OF PAKISTAN THROUGH THE Case No.: Constitutional Petition No. 618 of 1973 Date of Judgment:1974-05-08 Reported As: PLD 1974 Karachi 429 Result: Petition dismissed
JUDGMENT
JUDGMENT ABDUL KADIR SHAIKH, J.---The facts leading to this petition under Article 199 of the Constitution of Pakistan briefly stated are that the petitioners Mst. Fatima filed Declaration under paragraph 7 of the Land Reforms Regulation, 1972 for approval of certain alienations made in respect of her landed property during the period from 1st March 1967 and 19th December 1971 in the prescribed form. On scrutiny the Land Commissioner, Sind approved all those alienations by the order dated 19th June 1972. However, by the subsequent order dated 2nd October 1972 he reviewed the earlier order and declared all the alterations as void and ineffective in view of the amendment made in paragraph 7(1)(b) of the Regulation, as a result of the effect of the Sind Ordinance No. XIV of 1972 promulgated on the 2nd September 1972. The petitioner has challenged the order on several grounds. It was firstly urged by the learned counsel for the petitioner that no notice as required under rule 10 of the Sind Land Reforms Rules, 1972 was issued to, the petitioner or to any other person in whose favour the alienation had been approved, and the impugned order having thus been passed in violation of the law as well as the principles of natural justice is liable to be quashed on, this short ground. The learned counsel then contended that no doubt that Mr. Abdullah D. Baloch who passed the impugned order, in his capacity of the Land Commissioner, Sind, Hyderabad was promoted to the rank of a Commissioner of a Division by virtue of Notification issued by the Provincial Government on 10th May 1972, but his appointment as Land Commissioner, Sind under the same Notification is invalid as it was made by the Provincial Government, and not the Sind Land Commission. In this behalf the learned counsel relied upon the provisions of the Paragraph 4(5) of the Regulation which authorises Land Commission to set up the Organization and appoint officers, authorities or persons and confer
---
## Page 2
powers on and assign duty to them. It was urged that the only competent authority under the law for the appoint--ment of Mr. Abdullah D. Baluch as the Land Commissioner, Sind was the Land Commission itself, and not the Provincial Government. The learned counsel pointed out few Notifications by which certain officers, including Mr. Abdullah D. Baloch himself as the Secretary of the Land Commission, were appointed by the Land Commission, in terms of Paragraph 4(5) of the Regulation. The next contention urged by the learned counsel was in regard to the challenge to the vires of the Martial Law Regulation No. 128. On this behalf it was pointed out that although this Martial Law Regulation was-- issued on 20-4-1972, yet it was not published in the Gazette of Pakistan until 22- 4-1972, and due to the promulgation of the Interim Constitution, 1972 in, the meanwhile it cannot have any legal value. Another challenge was made-- for the reasons of the withdrawal of Martial Law by the President of Pakistan: by his proclamation of the same day, whereby the offices of the Chief Martial Law etc. Were abolished, and the power to issue Martial Law Orders lapsed. On this argument was based the further contention that with the disappearance of the Martial Law Regulation No. 118 on account of the invalidity in law, the Order issued by the President of Pakistan on 2-4-1972, whereby the maximum ceiling of land of 15,000, P. I. Units permissible under para-- graph 8(1) of the Regulation was reduced to only 12,000 P. I. Units, must also disappear. The learned counsel then challenged the vires of the Sind Land Reforms-- Regulation (Sind Amendment) Ordinance No. XIV of 1972 which brought about changes in Paragraph 7 of the Regulation, whereby all the alienations by way of gift to non-heirs have been declared not to be bona fide transaction with retrospective effect, on the ground that it was not promulgated in persuance of instructions of the President envisaged by Article 135 (A) of the Interim Constitution, 1972. It was accordingly contended by the learned counsel that the order passed by the learned Land Commissioner, Sind dated 2-10-1972 in exercise of the purported powers vested in him under the aforesaid Amending Ordinance, invalidating the alienations made to non-heirs, in modification of his earlier order dated 19-6-1972, is therefore, illegal and devoid of any legal authority. So far as the position in law in regard to Martial Law Regulation No. 115 is concerned, no challenge having been made against it, the result that must follow it is that the alienations made by the petitioner became void ab initio by virtue of the provisions made in Paragraph 7 of the Regulation, unless these were approved as bona fide transactions or otherwise served under the provisions of the same paragraph. The paragraph reads as follows :- "(b) save in cases where the Commission is satisfied that it was a bona fide transaction the transfer of any land and the creation of any right or interest in or encumbrance on any land, made in any manner whatsoever, by any person holding on first March 1967, an area equivalent to more than fifteen thousand produce index units (calculated on the basis of classification of soil as entered in the Revenue Records for Kharif 1966 and Rabi 1966-67), shall be and shall be deemed always to have been void, and the land so transferred or the land on which the right, interest or encumbrance was created shall be, and shall be deemed always to have been owned or possession, as the case may be, by the person by whom owned or possessed, as the case may be, by the person by whom it was owned or possessed immediately before that date Provided that nothing in this clause shall apply to an alienation made by a person in favour of his heir. Explanation I.-For the purpose of this sub-paragraph and paragraph 10, an heir shall mean the owner's wife or wives, sons, daughters, father, mother and sons and daughters of a deceased son or daughter. Explanation II-Where any such transaction as is referred to in clause (b) of this sub-paragraph has resulted in the transfer of any land or the creation of any right or interest in or encumbrance on any
---
## Page 3
land in favour of a member of the owner's family or the reversion of such land to such owner or member, whether through the intermediation of a third person or otherwise, such transaction shall b; deemed to be void, and the laud so transferred or encumbered shall be deemed to have been owned or possessed, as the case may be, by the person by whom it was owned or possessed immediately before such transfer or encum--brance. Explanation III.-In determining whether a transaction referred to in clause (b) of paragraph (1) was bona fide or otherwise, the Commis--sioner shall, among other matters, take into consideration the following factors (i) whether adequate consideration has been paid by or on behalf of the person in whose favour the transfer has been made or any right, interest or encumbrance has been created ; (ii) under whose management the land has remained which is claimed to have been transferred or in respect of which any right, interest or encumbrance has been created ; (iii) who has been paying the land revenue and other charges in respect of such land ; (iv) who has been receiving the rent for or batai share from such land." The petitioner disclosed four alienations made by her during the specified period, and succeeded in getting these approved by the order of the learned Land Commissioner, Sind dated 19-6-1972. This order reads as follows: "The declarant Mst. Fatima has disclosed the alienations during the specified period as under Deh Name of person and relation Area Nindo 1 Nisar Ahmed nephew 96-7-Gift Stt. No. Dt. 23-5-70 Entry No. 109/dt. 16-11-1970 Nindo 2 Muhammad Hassan cousin 101-9 Gift 7-9-68 Entry No. 104/ 7-5-69. Nindo 3 Khair Muhammad cousin 96-7 23-9-70 Entry No. 109/ 1-11-70 Nindo 4 Amir A.I nephew 96-7 23-9-70 Entry No. 109/ 1-11-70 The alienation as in favour of two cousins and two nephews who are relations of the declarant are by way of gift through statement dated 23-9-1970. The gifts are according to Muslim Law. The alienees are reported to be in effective possession of the land. They are managing it, appropriating the produce and paying the land revenue. The alienations have been made in record-of-rights dated 16-11-70 i.e. Before the crucial date 20-12-1971. I hold these alienations are bona fide and I declare it to be void under paragraph 7 of the Regulation " The learned Land Commissioner afterwards recalled this order in exercise of suo motu review powers by the order dated 2-10-1972. It reads: --- "I had confirmed the following alienations made by way of Gift by this declarant to persons other than heirs under para. 7 of Regulation vide my order No. 10-6-LC/72, dated 19-6-1972 by promulgation of Sind Ordinance No. XIV of 1972, the MLR-115 stands amended. Hence this order in review. Alienation by gift to persons other than heirs Sr. No.
---
## Page 4
Name of alienees Relationship Nature of alienation Area under alienation 1. Nisar Ahmed Nephew Gift 96-7 2. Muhammad Hassan Cousin Gift 101-9 3. Khair Muhammad Cousin Gift 96-7 4. Amir A.I Nephew Gift 96-7 I have seen the record. I find that the above alienations are void ab initio under proviso to para. 7 (1) (b) of the Regulation. I therefore recall my confirmation orders in this respect and declare the above alienations as void and ineffective. The area involved should be added to the holding of the declarant for order of resumption of excess land by the Deputy Land Commissioner: "In case, the D. L. C. Has already passed orders under para--graph 8 of the Regulation in this case, he is hereby authorised to review his own order or that of his predecessor and determine the case afresh." We have already taken the view in several cases that the effect of para. 7 of the Regulation on the transactions covered by it is unfortunate. In Punhoon v. Islamic Republic of Pakistan and others (Constitutional Petition No. 846 of 1973), we made the following observations: - "It may firstly be pointed out that an important effect of Land Reforms Regulation, 1972, was that the creation of any right or interest in or encumbrance on any land made in any manner whatever as from lst March 1967, in respect of any area held by a person who owned or possessed land beyond the prescribed limit, became void. It may well be that the gift made in petitioner's favour by his paternal niece Mst. Karima was valid under the Mohammadan Law, but this fact cannot take away the effect of the provisions of Martial Law Regulation 115, which wiped away petitioner's right in property, if any, the contention regarding violation of principles of natural justice is also misconceived since petitioner's alleged right in property was taken away by the Supra-Legislative measure. It does not lie in his mouth to complain that he should have been heard before the Martial Law Regulation No. 115, which adversely affects his rights in property was promul--gated. The petitioner, therefore, cannot be said to have any right to the land. The alienation of the land made by Mst. Karima on 6th August 1969, was approved under provisions of paragraph 7 of the Regulation. Mst. Karima had indeed sought approval of the aliena--petition made by her in favour of the petitioner in the prescribed Declaration form but in the ultimate analysis the transaction was
---
## Page 5
not approved as it is not provided for or envisaged by the provisions made in the Regulation. Under paragraph 7(b), the Regulation provides for recognition of the transfer of lands by way of gift in favour of an heir, who in Explanation I, mean the owner's wife or wives, sons, owner's husband, daughters, father, mother, sons and daughters of the deceased son or daughter. Admittedly the petitioner does not fall in this category. We, therefore, cannot see how fault can be found with the learned Land Commissioner, Sind, in refusing to confirm the alienation made by Mst. Karima in petitioner's favour." It is therefore, clear that the effect of paragraph 7 of the Regulation was such that the alienations sought to be confirmed by the petitioner under this paragraph were totally void. This case, however, requires further examination m the light of the new contentions raised by the learned counsel. The first challenge made by him was regarding the validity of the appointment of Mr. Abdullah D. Baloch as the Land Commissioner, Sind, who passed the impugned order dated 2-10-1972 against the petitioner. We shay in this connection point out that the contention raised is hardly useful to the petitioner, for, what she seeks to achieve in this petition is the revival of the order dated 19-6-1972 which was also passed by the same official, namely, Mr. Abdullah D. Baloch, in his capacity as Land Commissioner, Sind. If the petitioner were to succeed in her challenge leveled against the appointment of Mr. Abdullah D. Baluch, the earlier order passed by him in her favour cannot be held as valid, and that order will have also to be set aside. However, as the question raised by the learned counsel is likely to be raised in many cases, it is only appropriate that we should settle this controversy. It would be noticed from the various provisions of the Land Reforms Regulation, 1972 that the entire machinery for the purpose to be achieved by this Super-Legislative Instrument was entrusted to the Provinces, the reason obviously being that the Regulation related to the subject-matter on which the Provincial Legislature was competent to make the laws. A Land Commis--sion for each province was set up, consisting of the Governor of that province to be its Chairman, and not more than three members to be appointed by him. At a later stage, by an amendment made under the Land Reforms Regulation (Sind Amendment) Act XI of 1972, the Chief Minister was to be the Chairman of the Commission, and he was to appoint the members constituting the Commission. We may now reproduce the relevant provisions of the regulation in order to appreciate the contentions raised in this case. Paragraphs 4 to 6 read as follows: --- "4. Constitution of Land Commissions and their powers.-(1) For carrying out the purposes of this regulation, there shall be constituted for each Province a Commission to be known as the Land Commission of the province concerned, consisting of the Governor of that Province, who shall be its Chairman, was not more that three members, to be appointment by the Governor. (2) The Commission for the Province of the Punjab shall also be the Commission for the Islamabad Capital Territory. (3) A Commission of a Province shall have all the powers necessary for the implementation of this Regulation within the Province. (4) A Commission may nominate one of its members to the Chief Land Commissioner, who shall, subject to such directions as may from time to time be given by the Commission, be responsible for the implemen--tation of this Regulation. (5) Each Commission may set up organizations and appoint officers, authorities and persons, and confer powers on, and assign duties to, them. (6) Where any dispute arises in carrying into effect the provisions of this Regulation, it shall be referred to the Commission for the province within which such dispute arises, and the decision of the Commission thereon shall be final.
---
## Page 6
(7) Where any dispute or difference arises between two or more commis--sions with respect to any provision of, or any matter connected with this Regulation, it shall be referred to the President, whose decision thereon shall be final. (8) Where any matter is not provided for in this Regulation, or any difficulty arises in giving effect to the purpose of this Regulation, a Commission may, in respect thereof as it thinks fit, or as may bs directed by the President, and such order shall be deemed to form a part of this Regulation and have effect accordingly. 5. Delegation of powers.-A Commission may, by notification in the official Gazette, direct that the powers exercise-able by it under this Regulation may, subject to such conditions, including provisions as to appeal, revision or review, if any, as may be specified in the notification, be exercised also by any of its members or officers or authorities subordinate to it Provided that a Commission shall not delegate its powers under sub--paragraph (2) of paragraph 7 to an officer below the rank of a Commissioner of a Division. 6. 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. It would be noticed that a Commission set up under Paragraph 4(1) is given all the powers necessary for the implementation of the Regulation, including setting up of the Organization, and to appoint officers, autho--rities and persons, and confer powers on, and assign duties to, them. The Land Commission is made the sole and exclusive arbiter of all the disputes that may arise in carrying into effect the provisions of the Regulation, and its decision is made final. The Land Com--mission has been authorised to nominate one of its members to be the Chief Land Commissioner, who, under Paragraph 4(4), is responsible for the implementation of the Regulation subject, however, to any direction that may be given to him by the Commission, from time to time. It is authorised, under Paragraph 5, to delegate any of its powers to any of its members, or officers, by issuing a Notification in the official Gazette in that behalf, and the delegation of the powers may be made subject to such conditions, including provisions as to appeal, Revision or Review, as may be specified in the Notification. An exception has been however, made in the case of delegation of its powers under Sub --Paragraph (2) of Paragraph 7 to an Officer below the rank of the Commissioner of a Division. The Sind Land Commission in exercise of powers under paragraph 4 of the Regulation, issued the following Notifications on 25th March 1972, which were published in the Sind Government Gazette Extraordinary, Part I, dated 30th March 1972. GOVERNMENT OF SIND, SIND LAND COMMISSION SECRETARIAT NOTIFICATIONS dated the 25th March 1972 No. SLC-1/72/3.-In exercise of the powers conferred on it under para--graph 4(4) of the Land Reforms Regulation, 1972 (Martial Law Regulation 115) the Sind Land Commission is pleased to nominate Mr. Nusrat Hasan, C S. P., Senior Member, Board of Revenue and a Member of the Sind Land Commission as the Chief Land Commis--sioner, Sind with effect from ,11th March 1972. No. SLC. 1/72/4.-In exercise of the powers conferred on it under paragraph 4(5) of the Land Reforms Regulation, 1972 (Martial Law Regulation 115), the Sind Land Commission is pleased to appoint Mr. Abdullah D. Baloch, P. C. S. Secretary (Revenue), Board of Revenue as the Secretary, Sind Land Commission with effect from 11th March 1972 in addition to his own duties. No. SLC-1/72/5.-In exercise of powers vesting in it, under para--graph 4(5) read with proviso to paragraph 5 of Land Reforms Regulation, 1972 (Martial Law Regulation 115), the Sind Land Commission is pleased to sanction the following posts with immediate effect :- Serial No. Name of post
---
## Page 7
No. Status Sphere of duty 1. Land Commissioner (One) Joint Secretary to Central Government For Sind Province. 2. Deputy Secretary (Two) Junior Time Scale. 3. Assistant to Land Commissioner (One) Junior Time Scale. 4. Inspecting Officers Land Reforms (Two) Junior Time Scale. 5. Mukhtiarkars (Eleven) Mukh's grade One for each District in the Province. 6. Assistant Secretary (One) Mukh's grade The Sind Land Commission is further pleased to authorise the Chief Land Commissioner to sanction necessary complementary staff for the above officers up to 31st December 1972. The Sind Land Commission is also pleased to authorise the Chief Land Commissioner to fill these posts. No. SLC-1/72/6.-In exercise of the powers conferred on the Sind Land Commission under paragraph 4(5) of the Land Reforms Regulation, 1972. (Martial Law Regulation 115), the Commission is pleased to: ----- (i) Set-up an organization consisting of Land Commissioner, Deputy Land Commissioners, Assistant Land Commissioners and Sub-- Assistant Land Commissioners at the provincial, district, Sub-Divi--sional and Taluka levels ; and (ii) Invest: ----- (a) The Land Commissioner, Sind with all the powers of the Land Commissioner; (b) Deputy Commissioners of Districts with the powers of Deputy Land Commissioners within their respective jurisdictions; (c) Assistant Commissioners of Sub-Divisions with the powers of Assistant Land Commissioners within their respective jurisdictions; and (d) Mukhtiarkars of Talukas with the powers of Sub-Assistant Land Commissioners within their respective jurisdictions. The Officers mentioned above will exercise these powers subject to the general control and superintendence of the Chief Land Commissioner. These orders will be effective from 11th March 1972. No. SLC-1/72/7.-In exercise of the powers vested under paragraph 4(3) of Land Reforms Regulat on, 1972 (Martial Law Regulation 115), the Sind Land Commission is pleased to delegate to the following
---
## Page 8
Officers, the powers mentioned against each :- Power Authority to whom delegated 1. Powers to decide whether Land Commissioner, Sind only. Vesting in the Sind Land Commission under paragraph 7 of Land Reforms Regulation, 1972 (Martial Law Regulation 115). Chief Land Commissioner, Sind and Land Commissioner, Sind only. 2. Powers to allow an existing owner required to file declarations under paragraph 12 of the Regulation, to retain the area permitted under paragraphs 8, 9, 10 and 11 of the Regulation and powers to pass orders under Paragraph 13 of the Regulation. Deputy Land Commissioners (Deputy Commissioners) of the Districts. 3. Powers to decide in consequence of declaration under paragraphs 12(2) and 14 of the Regulation. Deputy Land Commissioners (Deputy Commissioners) of the Districts. 4. Powers to resume all areas under stud or livestock Farms under paragraph 15 of the Regulation. Deputy Land Commissioners (Deputy Commissioners) of the Districts. 5. Powers to resume all areas under Shikargahs under paragraph 16 of the Regulation. Deputy Land Commissioners (Deputy Commissioners) of the Districts. 6. Power of demarcations and Assistant partition of land vesting in the Land Commission under paragraph 13(1) of the Regulation. Land Commissioner (Assistant Commissioner) within his respective jurisdictions. 7. Powers of certifying under paragraph 8, Part III of Martial Law Regulation 115 of 1972 whether or not the agricultural tractor owned by a person claiming retention of additional area up to 3000 P. 1. Us. Was in good working order on 20 December 1971 (paragraph 8(2)(i) or there was installed on his land a tube-well of not less than ten horse-- power (paragraph 8(2)(ii). Assistant Land Commissioners of the Sub-Divisions concerned. It is noteworthy to point out that in the context of the Province of Sind that the posts of Divisional Commissioners under the administrative arrange--ment that obtained before the disintegration of the Province of West Pakistan, were later on abolished. It was stated by the learned Advocate- General that the Sind Land Commission wanted to appoint Mr. Abdullah D. Baloch as the Land Commissioner, he being conversant with the implementation machinery of the Land Reforms because of his association with the organiza--petition as the Secretary of the Commission. He, however, was to be upgraded to the rank of a Commissioner of a Division, in order to possess the requisite qualification for the exercise of the delegated powers under Sub-paragraph (2) of paragraph 7 of the Regulation, and the Sind Land Commission therefore made a reference to the Provincial Governor that he may be upgraded accordingly. The learned Advocate-Generalth
---
## Page 9
produced the Notification issued by the Provincial Government promoting Mr. Abdullah D. Baloch try the post of Commissioner of a Division. This Notification reads: --- "Government of Sind, Services, General Administration and Information Department, NOTIFICATION Karachi, dated the 10th May 1972. No. SOI (S & GID)-1/2/72.-Consequent upon the approval by the Government of Pakistan (Establishment Division) the Governor of Sind is pleased to promote Mr. Abdullah D. Baloch, P. C. S.,…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.