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Petitioner: FARIDUNNISA BEGUM VS Respondent: CHAIRMAN, FEDERAL LAND COMMISSION, RAWALPINDI
Court Name: Sindh High Court Judge(s): Nasir Aslam Zahid, Ajmal Mian, Syed Haider Ali Pirzada Title:FARIDUNNISA BEGUM vs CHAIRMAN, FEDERAL LAND COMMISSION, RAWALPINDI
JUDGMENT
Reported As: PLD 1984 Karachi 449 Result: Reference answered Judgment JUDGMENT ' AJMAL MIAN, J.-The following question has been referred to this Full Bench. "Whether the period fixed through notifications issued by the Sind Land Commission under para. 12 of the Land Reforms Regulation, 1972 (M. L. R. 115) for filing Form L R-V1I is in the nature of period of limitation and a claimant is debarred from filing such form after the notified date or such form filed after the notified date can be entertained and delay condoned by the Land Commission Authorities?" ' The brief facts leading to the making of this reference are that the petitioner under sub-para. (2) of para.. 8 of M. L. R. 115 (hereinafter referred to as the Regulation) was entitled to retain an additional area of agricultural land, equivalent to 2000 P. 1. Us. The Sind Land Commission by a Notification No. S. L. R./1/74/16, notified 30-4-1972 as the last date for filing an application in Form LR-V1I (which date was extended later on upto 20-8-1972) for retaining additional area on account of owning an agricultural Tractor or having installed a tubewell of not less than 10 Horse Power by 20th December, 1971. The petitioner though filed her declaration under sub-para. (1) of para. 8 of the Regulation within the specified time, but for availing of the above additional agricultural land equivalent to 2000 P. I. Us. On account of owning an agricultural Tractor under above sub-para. (2) of para. 8 filed Form LR-VII on 4-11-1972 aiongwtih an application for condonation of the delay. The Chief Land Commissioner Sind, condoned the above delay inasmuch as the order of condonation was communicated to the petitioner by the Secretary, Sind Land Commission through a memo., dated 24-11-1972. The Deputy Land Commissioner, in view of the above condonation order by his order, dated 2-12-1972 accepted
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petitioner's Form LR-VII and allowed her to retain an additional area equivalent to 2000 P. I. Us. However, it appears that on 19-2-1974 the Sind Land Commission made a policy decision to the effect that since the date for filing Form LR-VII stood already notified, there was no rule for condoning any delay in filing of such Form by way of judicial order or otherwise and it was also resolved that all applications for permission to file Form LR-Vll then pending, before the authorities concerned should be disposed of accordingly. It was further resolved that the delays already condoned should be at once reviewed and withdrawn and action be taken for resumption of excess land. In pursuance of the above policy decision, the petitioner received a notice from the Deputy Land Commissioner, Khairpur, to appear before him for review of the order for the condonation of delay, but he maintained earlier order by his order dated 29-5-1975. It appears that the matter was reopened sub,. Sequently by the Officer on Special Duty, the Federal Land Commission in exercise of suo mow revisional power under para. 29 of the Regulation. After hearing the counsel for the petitioner, the Officer on Special Duty, the Federal Land Commission by his order, dated 12-84976 set aside the. Earlier order for the condonation of the delay and ordered the resumption of the additional land allowed on account of owning an agricultural Tractor by the petitioner. The above order has been impugned by the petitioner through the above petition. The above petition was heard by a Division Bench of this Court on 15-3-1984, which was of the view that the matter was fit for reference to a larger Bench because of the conflicting D. B's. Judgments of this Court, in the unreported judgment, dated 5-5-1980 given in C. P. No. D-739/76 Faqir Muhammad v. Officer on Special Duty and M51. Sharifan Begum v. Officer on Special Duty (1), it was held by two Division Benches of this Court that the Chief Land Commissioner was not competent to condone the delay, whereas two other D. Bs. In C. P. No. 1143/74 Legal Representative of M. B. v. Deputy Land Commissioner and C. P. No. D-255 of 1977 (Ahmed Hussain v. Officer on Special Duty), took a contrary view and held that delay could be condoned. In pursuance of a reference made by the aforesaid Division Bench, the above question referred to bereinabove in para. 1, has been referred to this Full Bench for opinion. 2. (a) Mr. Muhammad Ali Sayeed, learned counsel for the petitioner has urged as follows (i) That since para. 8(2) of the Regulation confers an absolute right on an owner to retain additional land equivalent to 2000 P. 1. Us, on account of owning of an agricultural Tractor or on account of installing a tube-well of not less than 'n horse power by 20th December, 1971, the above right cannot be taken away by prescribing time' for filing LR-VII. (ii) That since para. 8(2) of the Regulation does not provide itself any limitation period, the time prescribed by the Sind Land Commission for filing LR-V11 cannot be equated with the period of limitation in juristic concept of law of limitation. (b) On other hand Mrs. Salima Nasiruddin and Mr. Naqi Mirza, Advocates who appeared for the respondents have contended that an owner, who failed to file LR-VII within the notified date had lost his right to retain additional land equivalent to 2000 P. I. Us. And that no officer of the Land Commission was competent to condone the delay. 3. (a) Before taking up the contentions of the learned counsel for the parties, it may be pertinent to refer to the relevant provisions of the Regulation. It may be observed that the preamble to the Regulation gives the objects namely, to facilitate equitable distribution of wealth and economic powers as enjoined by Islam and in the supreme national interest to improve, the economic well- being of the peasantry by making agriculture a profitable vocation. It may further be observed that para. 3 provides that the provision of the Regulation and any rule and order made thereunder shalt have effect notwithstanding anything contrary contained in any other law, or in an order or decree of a Court or Tribunal or other authority or in any rule or custom or usage or in any contract, instrument, deed or other document Whereas para. 4 provides that for carrying the purpose of the
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Regulation there shall be constituted for each province a Commission to be known as Lan Commission of the province concerned. It further provides that the commission of a province shall have all powers necessary for the implementation of the Regulation within the province. It also provides that a Commission {{FOOT NOTE}} (I) 1981 CLC 1514 {{FOOT NOTE}} ' may nominate one of its members to be the Chief Land Commissioner, we shall, subject to such direction as may from time to time be given by the Commission, . Be responsible for the implementation of the Regulation. I also provides that each Commission may set up organizations and appoint officers, authorities, and persons and confer powers on and assign duties to them. It further provides that where any matter is not provided for in the Regulation or any difficulty arises in giving effect to the purposes of the Regulation, a Commission may with the approval or on the. Direction of the President make such provisions in respect thereof as it deems fit or may directed by the President, and such orders shall be deemed to form part of the Regulation and have effect accordingly. It may further be stated that para. 5 empowers a Commission by notification in an official gazette to delegate the powers exercisable by it under the Regulation, subject to such conditions including provisions as to appeal, revision or review, if any, as may be specified in the notification, to any member or officers or authorities sub ordinates to it. The proviso to the above para. Provides an embargo to the effect that under sub-para. (2) of para. 7, a Commission shall not delegate it power to an officer below the rank of a Commissioner of a Division. It may also be mentioned that para. 6 provides that a Commission may make rule for carrying out the purposes of the Regulation, including rules on matter relating to or connected with the presentation, hearing and determination of an appeal from, and application for the revision and review of, orders made under the Regulation. (b) It may be advantageous to reproduce para. 8 of the Regulation, which is in issue, which reads as follows "8. Limits on individual holdings:(1) Save as otherwise provided in this Regulation, no person shall, at any time, own or in any capacity possess land in excess of one hundred and fifty Acres of irrigated land or three hundred Acres of unirrigated land, or irrigated and unirrigated land the aggregate area of which exceeds one hundred and fifty Acres of irrigated land (one Acre of irrigated land being reckoned as equivalent to two Acres of unirrigated land), or an area equivalent to twelve thousand produce index units of land, whichever shall be greater. (2) Notwithstanding the provisions of sub-paragraph (1), an owner may retain, out of the area of land he was' holding immediately before the commencement Of this Regulation, such additional area, if any which would bring the total area retained by him to the equivalent of fourteen thousand produce index units, if on the twentieth of December, 1971,- (I) he owned an agricultural tractor, certified to be in good working order by an officer authorised by the Commission in this behalf; or (ii) there was installed on his land a tubewell, of not less than 10 horsepower. (3) Any person, who, at any time before the commencement of this Regulation but not earlier than the twenty-first day of December, 1971, became the owner of an agricultural tractor certified as provided in clause (I) of sub-paragraph (2) or had installed on his land a tube-well of not less than 10 horse-power, or at any time after the commencement of this Regulation becomes the owner of such a tractor or instals on his land such a tubewell, shall, notwithstanding the provisions of sub- paragraph (1), be entitled after becoming the owner of such tractor or having installed such a tubewell, to acquire, possess or own such additional area as would bring the total area possessed or owned by him to the equivalent of fourteen thousand index units:
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' Provided that a person who on the twentieth day of December, 1971, was in possession of an area of land equivalent to more than twelve thousand produce index units shall not be entitled to possess any additional area of land under this sub-paragraph until he has surrendered to Government land in excess of area equivalent to twelve thousand produce index units." ' It may be noticed that above-quoted sub-para. (1), of para. 8 provides the limit for agricultural land holding by an owner namely, 150 Acres of irrigated land or 300 Acres of unirrigated land or an area equivalent to 12000 produce index units of land, whichever shall be greater. It may further be noticed that sub-para. (2) allows, an additional area of 2000 P. I. Us. In addition to the area provided for under above sub-para. (1) if on the 20th December, 1971, an owner owns an agricultural Tractor certified to be in good working order by an officer authorised by the Commission in this behalf or there was installed on his land a tubewell, of not less than 10 horse- power. (c) It may also be pertinent to mention that sub-para. (1) of para. 12 of the Regulation provides that a Commission may by order published in an official Gazette, direct to classes of persons mentioned in clauses (a) to ( f ) to submit to such authority, in such manner and form and by such date, as may be specified in the order, declarations, disclosing the informations required under the above clauses. It may also be mentioned that para. 13 provides that the land in excess of the area permissible for retention under Part III of the Regulation, which includes above para. 8, shall vest absolutely in Government free from any encumbrance or charge and without payment of any compensation. It further provides that any encumbrance or charge existing on the land surrendered, by a person which vests in Government under sub-paragraph (1) of the above para. 13 shall be deemed to have been transferred to the land retained by such person under Part M. (d) It may also be stated that under notification dated 17th July, 1972, the Sind Land Commission in exercise of the power conferred by para. 6 of Regulation and supersession of the Sind Land Reforms Rules, 1972 framed rules. It may be pertinent to refer to rule 3, which provides as follows :-- - "3.-(l) Subject to the general superintendence and control of the Commission, the Chief Land Commissioner may make such general or special orders, not inconsistent with the provisions of the Regulation and these Rules, as he may consider necessary or expedient for giving effect to the purposes of the Regulation and for the proper discharge of his functions as such. (2) Subject to the provisions of the Regulation and these Rules, the general superintendence, control and direction of all officers and staff appointed for, or entrusted with the duty of, implementing the provisions of the Regulation, shall vest in the Chief Land Commissioner. (3) The Chief Land Commissioner, may, by special or general order, provide for the distribution and allocation of work to be done by the officers." It may be noticed that under the above-quoted Rule, subject to the general superintendence and control of the Commission, the Chief Land Commissioner has been authorised to make general or special order not inconsistent with the provisions of the Regulation and these Rules he ma consider necessary or expedient for giving effect to the purposes of the Regulation and for the proper discharge of his functions as such. It also vests in the Chief Land Commissioner subject to the provisions of the Regulation and the Rules, the general superintendence, control and direction of all officers and staff appointed for or entrusted with the duty of implementing the provisions of Regulation. 4. (a) Having dealt with the relevant provisions of the Regulation and the rules, it may now be pertinent to refer to the cases relied upon by Mr. Muhammad Ali Sayeed in support of his above contention. (i) Ali Jan and 5 others v. Commissioner, F. C. R., Quetta Division and 7 others (0, in which the question before a Division Bench of the erstwhile High Court of West Pakistan at Quetta Circuit
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Bench, was, whether the limitation period provided for filing of a proceeding under section 8 of the F. C. R. Can be treated a limitation provided for in terms of section 29(2) of the Limitation Act as to attract section 3 of the said Act. It was held that the preamble of the Limitation Act clearly indicates that it was to provide and amend law relating to the limitation of suits, appeals and certain applications to Court and since the authorities under the Frontier Crime Regulations cannot and have not been treated as Court, neither subsection (2) of section 29 nor section 3 of the Limitation Act was attracted to a proceeding under the F. C. R. (ii) Niaz Muhammad Khan v. Mien Fazal Raqib (2), in which the question before the Honourable Supreme Court was, whether the Court must be deemed to have extended the time fixed by it for furnishing security under section 23(1) of the N.-W. F. P. Pre-emption Act, 1950 if it accepts the security after the specified period. It was held that if a pre-emptor fails to comply with the above subsection (1) of section 22, then the consequence of such non-compliance according to subsection (4) is that the plaint shall be rejected. It was further held that on failure on the part of the pre-emptor to comply with the requirement of subsection (I) of section 23 a right accrues in favour of the vendee to have the plaint rejected, and, therefore, the Court could not by implication extend time and take away the valuable right. It will be pertinent to quote the relevant observations of the Supreme Court on the question of a mandatory or directory provision, which have direct bearing to the point in issue, which read as follows :- "It is true that no universal rule can be laid down for the construction of statutes as to whether mandatory enactments shall be considered directory only or obligatory, with an implied nullification for disobedience. It is the duty of the Courts to try to get at the real intention of the Legislature, by carefully attending to the whole scope of the statute to be constructed. As a general rule however, a statute is understood to be directory when it contains matter merely of direction, but not when those directions are followed up by an express provision that, in default of following them, the facts shall be null and void. To put it differently, if the Act is directory, its disobedience does not entail any invalidity; if the Act is mandatory disobedience entails serious legal consequences amounting to the invalidity of the act done in disobedience to the provision. {{FOOT NOTE}} (1) PLD 1970 Quetta 93 (2) PLD 1974 SC 134 {{FOOT NOTE}} ' Viewed in this light, and keeping in mind the fact that the provisions in question are embodied in a statute dealing with a right which has been described as predatory or piratical in nature, it would appear that the requirement enjoined by subsections (1) and (4) of section 23 of the Act is mandatory in nature as failure to comply with the same is to be visited by the penal consequence of the rejection of the plaint. The High Court was, therefore, right in rejecting the plaint, once it came to the conclusion that the directions of the trial Court in regard to the furnishing of security had not been complied with within the period specified." ' Noor Hussain Natha v. Controller of Estate Duty (1), the question before a Division Bench of the erstwhile High Court of West Pakistan, Karachi Bench was, whether non-filing of an appeal in the prescribed form as per rule 37 of the Estate Duty Rules was fatal to the competency of the appeal. It was held that subsection (I) of section 59 of the Estate Duty Act, 1950, which provides a right of appeal by providing that any person objecting to the valuation made or the Estate Duty determined by the Controller or denying his liability to account for duty payable in respect of any property, may within 90 days of the receipt of the notice of demand under section 58-0, appeal to the Appellate Tribunal in the prescribed manner, but it does not make the filing of the appeal in prescribed form as mandatory as to warrant the dismissal of an appeal on that ground as'the legislature has employed the word 'may' and not 'shall' in above subsection (I) of section 59. It was further be held that it is only under rule 37 which has been made obligatory to file the appeal in
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prescribed form and by doing so, the rule-making authority cannot take away the vested right of appeal recognized under the above-mentioned provision of law. (iv) Ch. Altaf Hussain and others v. The Chief Settlement Commissioner, Pakistan, Lahore and others (2), in which inter alia the question before the Supreme Court was, whether under para. 2 of Scheme 1 read with sections 11 and 23 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 the Chief Settlement Commissioner was competent to provide limitation of time. While considering the above question, the Honourable Supreme Court of Pakistan observed as follows :- "The contention that this form was submitted out of time is grounded on paragraph 2, Chapter II, of Settlement Scheme No. 1 prepared by the Chief Settlement Commissioner under directions of the Central Government by virtue of powers conferred by sections 16(1) (b) and (c) of the Act. This paragraph 2 of Chapter II prescribes that the Chief Settlement Commissioner "shall from time to time by notification in the official Gazette, invite applications for the transfer of property under this Scheme from such persons as may be specified in the notification:" The argument was advanced in the High Court and has been repeated before us that only two notifications were issued by the Chief Settlement Commissioner under WI provision, which are printed at pages 305 and 73 of the Manual. By the first notification dated the 19th of May, 1959, the last date fixed for applications under paragraph 2 of Settlement Scheme No. 1 was the 15th day of July, 1959. Under the second notification dated the 28th of October, 1959, this limiting date was extended upto the 10th of November, 1959, Subsequent to these two notifications it appears that Press-notes and {{FOOT NOTE}} (1)194 I) 1968 Kar. 515 (2)P D 1965 SC,68 {{FOOT NOTE}} ' Memoranda were being issued from time to time by the Chief Settlement Commissioner granting further extensions for such applications but it is true that at the time when Mr. Bashir Ahmad accepted the second form of Mr: Altaf Hussain, no such extension Memorandum or Press-note existed. Subsequent to that date, however Press-notes or Memoranda were issued from time to time and applications of this character admitted by the relevant authorities. The contention therefore raised on behalf' of the Settlement Department as well as on behalf of Mr. Shabbir Hussain that the only legal mode of extension possible, of the time limit for such applications being by a notification in the Gazette, all subsequent extensions of time allowed under orders of the Chief Settlement Commissioner were invalid, appears to be contrary to, the practice that has undoubtedly prevailed in this respect; in the Department. If such a contention is accepted all these forms which had been accepted by the Department under subsequent Press-notes or Memoranda, would have to he treated as without legal sanction. The true view, hot, ever, of the provisions of paragraph 2 of Settlement Scheme No. 1 seems to be that this is a mere enabling provision which empowers the chief, Settlement Commissioner to invite applications for the transfer of property under the Scheme, from relevant persons, from time to time. The paragraph does not in terms autnorize him to lay down a limiting date for the purpose and construing this paragraph strictly, it would not be right to import any such limiting factor into the situation." (v) Begum Nusrat Bhutto v Deputy Martial Law Administrator etc. (1), the question before a learned Single. Judge of the Lahore High Court was, whether paragraph 4 of C. M. L. 12 which, provides 20 days for submitting petition by a detenu to the detaining authority is in the strict sense of law a period of limitation. It was held that a detenu can make such a petition at any time after the expiry of 20 days and that detaining authority will not be justified to turn down such a petition on the ground of limitation alone but should consider the same on merits. (vi) Muhammad Abdul Khaliq Siddiqui v. Officer on Special Duty, Central Record Office, Lahore (2), in which the question before the Honourable Supreme-Court of Pakistan was, whether the
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Settlement Authorities were justified in rejecting the appellant's Q. P. R,V under sub-para (l).. Of para. 3, M. L. R. 84 on the ground that the same was filed beyond the specified date i.e. 20th February,- 1961- notified by the Chief Settlement Commissioner. While answering the above question in the negative, the Honourable Supreme Court, was pleased to observe as follows :- "Having considered the contentions raised by the learned counsel we are of the considered opinion that the interpretation sought to be placed by the Settlement Authorities as also by the learned Judges of the High Court was contrary to 'the spirit of the legislation whose subject was to eliminate bogus claims and not to deprive and punish genuine claimants. We may not, however, be understood to give a finding of fact in favour of the appellant as to the genuineness of his claim. In fact 'there appears to be no magic in the 'prescribed form' which even otherwise was not available and had, it appears, to be copied down from the office of the Chief Settlement Commissioner. Likewise the last date i.e, 20th- of February, 1961, was not fixed by the statute {{FOOT NOTE}} (1) PLD 1979 Lah. 91 (2) PLD 1976 SC 466 {{FOOT NOTE}} ' itself but by the Chief Settlement Commissioner under para. 3 of M. L. R. 84. Having been taken through the record we arc convinced that the appellant had conducted himself with prudence having pursued the matter with all the vigilance that , could be expected of a reasonable person. Being prevented by circumstances beyond his control he hastened to supply the necessary information on a plain paper which was despatched from India. This application was received on 9-2-1961 about 12, days before the last date.…
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