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Petitioner: MUHAMMAD SHAFIULLAH VS Respondent: GOVERNMENT OF PAKISTAN through Secretary, JUDGMENT
Court Name: Peshawar High Court Judge(s): Abdur Rauf Khan Lughmani, Shehzad Akbar Khan Title:MUHAMMAD SHAFIULLAH vs GOVERNMENT OF PAKISTAN through Secretary,
JUDGMENT
Reported As: PLD 2002 Peshawar 50 Result: Petition allowed Judgment JUDGMENT ABDUR RAUF KHAN LULAIMANI, J.--With a view to improve the economic well being of peasantry, by making agriculture a profitable vocation, Martial Law Regulation 115, to be called the Land Reforms Regulation, 1972, was promulgated, under para. 8 whereof no person was allowed to own, or, in any capacity, possess land in excess of hundred and fifty acres of irrigated land or three hundred acres of unirrigated land, or irrigated and unirrigated land, the aggregate area of which exceed hundred and fifty acres of irrigated land Under para. 7 of the Regulation transfer of any land, and the creation of any right or interest in or encumbrance on any land made in any manner whatsoever in respect of any area, on or after the 20th of December, 1971, by any person holding immediately before that date an area of more than the one fixed under para. 8 was to be deemed always to have been void and the land so transferred or encumbered was to be deemed to have been owned or possessed by the person by whom it was owned or possessed immediately before that date. Under the second proviso to para.7(1) (b), the restrictions, above detailed were, however, not to apply to any transfer of land or creation of any right or interest or encumbrance on any land by way of gift or otherwise made by a person in favour of heirs. 2. Muhammad Shafiullah, petitioner herein, is undisputedly the son of Abdur Rehman Khan. Through Mutation No,93, attested on 19-5-1971, 1167 Kanals one Marla of land situate in village Sheikh Sultan, equivalent to 3750 PI Units was transferred by way of sale by Abdur Rehman Khan in favour of Muhammad Shafiullah, petitioner, his son who was minor by that time. Martial Law Regulation 115 was further reformed by Act II of 1977 and the limits of maximum holding was further limited under sectioh 3 thereof. Pursuant to the provisions of said Act, Abdur Rehman submitted declaration form.
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During scrutiny of the said declaration, the head of the N.-W.F.P. Inspection Team, Federal Land Commission, in its inspection note pointed out that according to provisions of para. 7(1)(b) of M.L.R. 115, the bona fide of the alienation made in favour of legal heirs was not open to check and the only requirement of law was that the transaction had actually taken place and was not bogus. It was pointed out that the transaction made in favour of Muhammad Shafiullah, petitioner by Abdur Rehman, declarant was not held to be a bogus nne as such it was directed that in order to arrive at correct conclusion whether or not declarant is hit by the provisions of section 3 of Act II of 1977, after calculating his holding on 20-12-1971 and 4-1-1977. Mutation No,93 attested on 19-5-1971 in favour of legal heirs was to be re-examined by the Chief Land Commissioner, N.-W.F.P., Peshawar on suo motu side and also to reconcile the area PIUs calculated by the Team and that of Deputy Land Commissioner, Dera Ismail Khan with a view to pass a correct order, firstly, under M.L.R. 115 and then under Act II of 1977. In accordance with the observations of the Head of the Inspection Team, Deputy Land Commissioner referred the matter to the Chief Land Commissioner, N.-W.F.P., Peshawar vide his Letter No, 135/DLC dated 16-3-1983, the relevant part where reads:-- "Abdur Rehman Khan declarant had filed declaration form under M.L.R. 115 of 1972 which was verified by the Revenue Field Staff. According to order dated 28-6-1972 passed by the Deputy Land Commissioner, Dera Ismail Khan, the total holding of the declarant was found on 20-12-1971 as 505 Acres and 10 Marlas which is equal to 12262 PIUs. This include the area measuring 145 Acres, 7 Kanals and 10 Marlas equal to 3758 PIUs which was alienated by the declarant to his son vide Mutation No,93 attested on 19-5-1971 by way of sale, and the above mutation was subsequently declared invalid by the Land Commissioner, Dera Ismail Khan Division Dera Ismail Khan vide his order dated 15-6-1972. The Deputy Land Commissioner, Dera Ismail Khan vide his order quoted above resumed the excess area equal to 263 PIUs from the declarant and allowed him to retain an area equal to 12000 PIUs. The Head of Inspection Team has scrutinized the case vide his Inspection Note dated 26-2-1983 and has carried out the total holding of the declarant on 20-12-1971 as 845 Acres, 2 Kanals and 6 Marlas equal to 14808 PIUs, this includes an area measuring 145 Acres, 7 Kanals and 10 Marlas equal to 3497 PIUs which was transferred through Mutation No,93 to his son between the intervening period from 1-3-1967 and 20-12-1971. There is much difference in calculation of area and PIUs as worked out by the Head of Inspection Team and the Deputy Land Commissioner, Dera Ismail Khan verification order dated 28-6-1972. The declarant has been informed about the position of the case at this stage. Previously he did not prefer any appeal before the Chief Commissioner, N.-W.F.P., Peshawar about the invalidation f Mutation No,93 rejected by the Land Commissioner, Dera Ismail Khan Division, Dera Ismail Khan vide his order dated 15-6-1972. At this belated stage the undersigned has no powers to reconsider the case in the light of observations made by the Head of Inspection Team vide his Inspection Note quoted above, as the review passed under M . R. 115 has been withdrawn vide Notification No,9018/7(1)/LC, dated 10-10- 1974, and such powers vest with the Chief Land Commissioner, N.-W.F.P., Peshawar. You are, therefore, requested to take up the matter with the Chief Land Commissioner, N.-W.F.P., Peshawar under suo motu powers or guide us for further action in the case." The Chief Land Commissioner entrusted the matter to the Land Commissioner, Dera Ismail Khan, for taking it up for disposal under suo motu revisional jurisdiction. The Land Commissioner, Dera Ismail Khan, disposed of the matter on suo motu revisional side in the following words:-- "There appears no force in the reasons given by the Head of Inspection Team for reconsideration of transaction after about 11 years, because if the declarant was so anxious for validating of the transaction he should have resorted to legal course by filing an appeal before the Chief Land Commissioner and later on Federal Land Commissioner, which opportunity he did not avail during
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past 11 years. On the simple comission pointed out by the Head of Inspection Team which has no legal force nor binding on the Court, there is no justification to reopen the case." The aforesaid order of the Land Commissioner, Dera Ismail Khan suffers from legal infirmities, in that, it was not the declarant who questioned the proprieties of the actions of the Land Commissioner taken, pursuant to M.L.R. 115, despite specifying the transfer of 1167 Kanals of land in favour of his son, through Mutation No,93 dated 19-5-1971, rather when he submitted declaration in compliance with the requirements of Act II of 1977, it was the. Head of the Inspection Team of the Federal Land Commission who pointed out the lapse committed by the Land Commission by declaring the transfer in favour of the petitioner by his father Abdur Rehman as worth reexamination owing to the legal bar to check or question the bona fide of the alienation made in favour of legal heirs. The observations of the Land Commissioner that the head of inspection team of the Federal Government had no powers or that simple omission pointed out by the said inspection team is not binding on the Court, are the least tantamount to question the authority of the Land Commission. Under section 18(4) of Act II of 1977 Federal Land Commission has the powers to issue such directions to any or all Provincial Land Commissions as may be necessary for the purposes of the Act. Under section 28 of the Act no Court shall call in question or permit to be called in question any provision of the Act or any rule or Order made or anything done or any action taken thereunder. As pointed out earlier, the observations of the Head of the Inspection Team of the Federal Land Commission had been duly reported to the Chief Land Commissioner, N.- W.F.P., Peshawar who entrusted the case to the Land Commissioner for taking it .Up for disposal under suo motu revisional jurisdiction. Under section 27 of Act H of 1977 the Federal Government is empowered to at any time call for a case decided by a Commissioner or any authority empowered by a Commissioner in this behalf and pass such order as it may deem necessary and the order so passed shall be final. Under section 2(1) of the Act "Commission" has been defined to mean a Federal or Provincial Land Commission, constituted under the Land Reforms Regulation, 1972. Thus, in exercise of these powers the Federal Land Commission, or the Inspection Team, or the Provincial Land Commission, could go into the proprieties of the orders of the Commission, including the decision taken under M.L.R. 115/Land Reforms Regulation, 1972. The observations of the Land Commissioner that at a belated stage after 11 years the matter could not be reopened stands refuted by the Act itself and such conclusion drawn by the Land Commissioner was nullity in law. It is well-settled that a thing required to be done in a particular manner must be done in that manner or not at all and doing something which is in conflict with that would be not only unlawful but mala fide, thereby rendering it as without jurisdiction. 3. In reply to para. 1 in their written statement the respondents have admitted that petitioner was vendee of 1167 Kanals and one Marla of land through Mutation No,93 attested on 19-5-1971 and the position was repeatedly conceded by the learned counsel for the respondents and rightly so. The Land Commissioner had declared the mutation as invalid for not fulfilling the conditions of para. 7(1)(b) of M.L.R. 115. On the other hand, once a transaction was made in favour of legal heir by a declarant within the stipulated period, under the 2nd proviso to para. 7(1)(b) it was not open to any scrutiny and such a transaction was fully safeguarded by the law itself, as such, holding the transaction/alienation in favour of the petitioner, as void on the ground that it did not fulfill the requirements of para. 7(1)(b) of M.L.R. 115 is totally against the mandatory provisions ousting his jurisdiction in respect of any transfer of land or creation of any right or interest in or encumbrance on any land by way of gift or otherwise made by a person in favour of heirs. 4. There is no denying the fact that Mutation No,93 had been entered on 20-1-1971 and had been attested on 19-5-1971 i,e, the transaction took place within the stipulated period of 20-12-1971.
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Similarly it is also not disputed that the factum of sale by Abdur Rehman Khan, the declarant in favour of his son Muhammad Shafiullah, petitioner had duly been declared while submitting his declaration form which was, however, not given effect by the Land Commission while calculating the holding of Abdur Rehman Khan, declarant. Thus, for all intents and purposes, the order in question was without jurisdiction and the subsequent events, too, were nullity in law. In Muhammad Tufail v. Abdul Ghafoor (PLD 1958 SC 201), it was laid down:-- "Halsbury's Laws of England, Second Edition, Volume IX, para.1397 defines the cases where a writ of prohibition may issue. It says: 'Prohibition lies not only for excess of or absence of jurisdiction, but also for the contravention of some statute or the principles of the common law'. In Farguharson v. Morgan ((1894) 1 QB 552), it was held that 'where total absence of jurisdiction appears on the face of the proceedings in an inferior Court, the Court is bound to issue a prohibition, although the applicant for the writ has consented to or acquiesced in the exercise of jurisdiction by the inferior Court. The reason why, notwithstanding such acquiescence, a prohibition is granted where the want of jurisdiction is apparent on the face of the proceedings, is explained by Lord Donman in Bodonham v. Ricketts (6 M&M 170) to be for the sake of the public, lest the case might become a precedent if allowed to stand without impeachment." It is of significance to point it out that throughout all these developments, the petitioner, was kept aloof due to his minority, while the law addresses more to look after the interest of minors and even the Courts/authorities deciding/adjudicating upon a matter where the interest of minor is involved, are supposed to be more cautious of the situation. The petitioner was thus condemned unheard and the principle of audi alteram partem is all the more attracted in this case which adds to the exercise of jurisdiction questioning the vires of the transaction by Abdur Rehman in favour of his minor son, the petitioner herein totally without jurisdiction. 5. No doubt, Explanation III to para. 7 of the Regulation gives powers to the Commission to determine the bona fide or otherwise of a transaction referred to in clause (b) of paragraph ( l) but. Under the second proviso to clause (b) transfer of land or creation of any right or interest in or encumbrance on any land by way of gill or otherwise made by a person in favour of heirs excludes the application of the conditions enumerated in clause (b), as such determination of the bona fides of the transaction was beyond the scope of the Commission and the Head of the Inspection Team had correctly pointed out towards that aspect and the Chief Land Commissioner on his part also correctly asked the Land. Commissioner to reexamine the case under suo motu revisional jurisdiction which in the context of the foregoing unrebutted circumstances had wrongly been exercised, for, determining the transaction to be void as a whole was without jurisdiction. We are, therefore, of the firm view that the transaction made by Abdur Rehman declarant in favour of his son Muhammad Shafiullah, petitioner, for all intents and purposes was a valid transaction and the land transferred to Shafiullah was no longer available to fall part of the holding of Abdur Rehman, declarant, as such immune from declaration under M.L.R. 115 of 1972 Act II of 1977 as rightly pointed out by the Inspection Team of the Federal Land Commission to be re-examined. We, further declare that the Chief Land Commissioner had taken a correct decision to direct the Land Commissioner, Dera Ismail Khan to re-examine the matter under suo motu revisional jurisdiction, which did not involve any limitation, to refuse such an exercise on the only and lonely point "at a belated stage", particularly when the wrong assumption of jurisdiction questioning the vires of the transaction had been pointed out by the functionary of the Land Commission itself. 6. Now, we are left with the objection raised by the counsel for the respondents with regard to the maintainability of this petition on the ground of laches. Plea of laches has not been taken in the written statement. Although there is no statutorily---prescribed period/time limit within which the aggrieved person is required to seek the equitable relief within the four corners of the Constitution, time factor has always been material in the judicious resolution of the dispute, arising out of the
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executive decision, transgressing the limits of jurisdiction vested in them or assuming jurisdiction not so conferred. Law/Regulation is/are promulgated for the betterment of the society as a whole in changed environments, at the same time it fully acknowledges the obligations/rights, both collectively and individually, of its subjects. It is established principle that where there is a right there is duty, as such while the law gives the State a right to limit the holdings of an individual in a prescribed manner, it must be enforced in that manner, not arbitrary or simply because the functionary is vested with certain powers to do at his whims with least regard to the law under which it functions. In Molasses Trading & Export (Pvt.) Limited. v. Federation of Pakistan and others (1993 SCMR 1905), the Supreme Court held that statute cannot be read in such a way as to change accrued rights, the title to which consists in transactions past and closed or any facts or events that have already occurred. The sale in question in favour of the petitioner by his father, Abdur Rehman Khan, the declarant, took place on 19-5-1971 when the mutation was formally attested by the Revenue- Officer, as such it was fully safeguarded and immune from any sort of scrutiny even with regard to its bona fides. The possession was delivered to the petitioner which is uptil date not disputed to be with the petitioner. Naturally while the petitioner was a minor, management of lands and other interest concerning the said minor were all looked after by his guardian, the father being the natural one, and that aspect of the matter cannot be regarded to the disadvantage of the petitioner by questioning the bona fides of the transaction even, which the law regarded to be out of the scope of any sort of scrutiny, except that a transaction in favour of the heir did virtually take place prior to the target date. It, has all along never been the case of the respondents that the transaction had either not been made or that the revenue entries/record on that score was a bogus one. A particular methodology has been introduced for the disposal of the resumed lands but in this case no such events have occurred. Neither the land in question has been allotted to anybody nor has it been put to auction nor given to a landless tenant (s). It is conceded that not only the petitioner is in possession of the said land but has been and continues to enjoy the usufruct of the same. It has also been conceded that the land has not been allotted to anyone else. In para 1477 of Volume 16 (Fourth Edition), Halsbury's Laws of England explains the nature of laches infra; "In enacting a statute of limitation the Legislature specifies fixed periods after which claims are barred; equity does not fix a specific limit, but considers the circumstances of each case. In determining whether there has been such delay as to amount to laches, the chief points to be considered are (1) acquiescence on the plaintiff's part, and (2) any change of position that has occurred on the defendant's part. Acquiescence in this sense does not mean standing by while the violation of a right is in progress, but assent after the violation has been completed and the plaintiff has become aware of it. It is unjust to give the plaintiff a remedy where, by his conduct, he has done that which might fairly be regarded as equivalent to a waiver of it; or where by his conduct and neglect, though not waiving the remedy, he has put the other party in a position in which it would not be reasonable to place him if the remedy were afterwards to be asserted. In such cases lapse of time and delay are most material. Upon these consideration rests the doctrine of laches." In Volume 30-A, para. 112, the C.J.S. Has defined laches to mean such delay in enforcing one's rights as works disadvantage to another. It is laid down that:- "Laches in a general sense is the neglect, for an unreasonable and unexplained length of time, under circumstances permitting diligence, to do what in law should have been done, resulting in a disadvantage to the other party." While explaining the lapse of time under para. 116, the C.J.S. Lays down that:-- "Lapse of time is an important, indeed, an essential element of laches. However, unless a statute of limitations is by its terms applicable or is applied by analogy as discussed infra 131, there is no fixed
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period within which a person must assert his claim or be barred by laches; the length of time depends on the circumstances of the particular case." Moreover, although there are some cases apparently holding to the contrary, the rule supported by the weight of authority is that delay in asserting a right does not of itself constitute laches and bar relief. Accordingly, the conditions under which delay may constitute laches and bar relief are that it has worked injury, prejudice or disadvantage to defendant or other adversely interested; that, under the various conditions and circumstances of particular cases, evidence has been lost or obscured; that there are circumstances indicating that plaintiff has abandoned or waived his right or acquiesced in the assertion or operation of the adverse right; that the delay was culpable or due to lack of diligence; or that the delay has been such as practically to produce the Court from arriving at a safe conclusion as to the truth of the matters in controversy, and thus make the doing of equity either doubtful or impossible. Other conditions under which delay may constitute laches and bar relief are that the delay has been of such duration as to create or justify a presumption against the existence or validity of plaintiff's right, or a presumption that if plaintiff was ever possessed of a right it has been abandoned or waived or has been satisfied or a presumption that in consequence of the delay the adverse party would be inequitably prejudiced by the enforcement of the right asserted, or that there are other circumstances which would make the granting of relief inequitable." It was laid down that if under the circumstances the delay was reasonable, relief will not be denied on the ground of laches. Of course, ifsuch delay was unreasonable ordinarily relief will be denied although on the strength of the Authorities it was held that even unreasonable delay may not of itself. Constitute laches. 7. In the case in hand, as we have observed earlier, the petitioner has all along been and continues to be in possession of the suit property and no one has come forward to claim either its allotment, or its tenancy, or its ownership or enjoyment of the usufruct thereof. In the same sequence the C.J.S. Lays down:- "Whether one of the parties was in possession of the property in issue during the delay is a factor to be considered in determining the application of the doctrine of laches, and the doctrine of laches can ordinarily be invoked only by one in possession against one out of possession, and does not operate in favour of one who has never contacted the title or possession of property. One in peaceable possession of property under claim of right may rest in security until his title or possession is attacked, and the failure to appeal to equity during that period is no defence to a suit subsequently brought to establish, enforce, or protect his right. This rule applies not only in favour of those occupying lands, but also in favour of one enjoying the undisturbed privileges of an easement, and one in peaceable possession of personal property." In Haji Ghulam Qadir v. Custodian of Evacuee Property (1984 CLC 204), application of doctrine of laches was held to be the discretion vested in High Court. In S.Sharif Ahmed Hashmi v. The Chairman, Screening Committee, Lahore (1980 SCMR 711), their Lordships declined to condone the delay in filing the writ petition on the ground that the law drawn a line somewhere between delays which can and cannot be condoned and that the delay in the case being too gross to be condoned irrespective of question of order being either void or voidable. In their Lordships' view allowing writ after such gross laches would tantamount to throw on tax payer consequences of petitioner's gross negligence in pursuing his remedies. It is time to clear that the strength of the Authorities of this country are not in favour of dismissing petitions merely on the basis of laches alone but keeping the consequences of the order so passed after undue delay thereby upsetting the whole structure manufactured, as a consequence of the gross negligence on the part of the person seeking relief but where there has been no such adverse inference in favour of any
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adversary and once it .Is established that the order impugned is totally without jurisdiction the superior Courts of the land have never hesitated to come to the rescue of the person aggrieved to give him appropriate relief irrespective of long delay upon the principle of laches. Similarly where the circumstances suggest that action of a functionary of a State on the one hand acting without jurisdiction are tantamount to perpetuating injustice and amount to continuous wrong the question of laches has not been given any weight. In Arsala Khan v. Province of Sindh through Secretary, Government of Sindh, Karachi and 3 others (PLD 1976 Karachi 848), it was held:- "Apart from expressing any opinion on merits whether the action against the petitioner was justified…
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