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Petitioner: Mir ABDUL AZIZ VS Respondent: MIRPUR DEVELOPMENT AUTHORITY AND OTHERS
Court Name: Supreme Court of Azad Jammu and Kashmir Judge(s): Abdul Majeed Malik Title: Mir ABDUL AZIZ vs MIRPUR DEVELOPMENT AUTHORITY AND OTHERS Case No.: Writ Petition No, 18 of 1983 Date of Judgment:1985-12-16 Reported As: PLD 1986 Azad J & K 56 Result: Petition allowed
Judgment ORDER ' Mir Abdul Aziz is A senior journalist and Editor of Weekly `INSAF', Rawalpindi. In consequence of the recommendation of Press Advisory Committee constituted by the Government of Azad Jammu and Kashmir, the Government in consultation with the Mangla Dam Affairs Organization, decided to allot residential plots to the State journalists. The decision was conveyed to the petitioner through a letter No, 234851/71, dated June 15, 1971, by the Secretary, Information. The petitioner alongwith other journalists, applied for the allotment of the plot in Mirpur Town and the Allotment of Land Committee, Mirpur, under the instructions of the Government, resolved to allot plots to the journalists and in this behalf, the petitioner was intimated through a letter No, 3 (F-I) P-II, dated May 15, 1973 and was informed to deposit the price of the plot, so that regular allotment order was issued in his favour. On compliance with the instructions of the Allotment Committee, the petitioner was allotted plot No, 177, Sector F-2, Mirpur Town, measuring one Kenai, vide order, dated July 26, 1973. The Government issued a general notification on December 4, 1973, whereby all the allotments made by the then Allotment of Land Committee, Mirpur, were cancelled. As at the relevant time the allotments in favour .Of the petitioner .And other journalists were also made by the said Committee, the petitioner applied to the Prime Minister for restoration of his allotment. This was done on the application of the petitioner and the same was conveyed to the Authority. Meanwhile, some of the journalists, namely, Sh. Gulzar Ahmed Fida and Muhammad Fayyaz Abbasi,challenged the vires of the notification through a writ petition. The Government and the Allotment Committee admitted the claim of the journalists through -the Advocate Oeneral. The notification. Therefore, to the extent of petitioners in that case, was declared not enforceable. This order was passed by the Division Bench of this Court consisting of Mr. Justice Kb: Muhammad Yusuf
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Saraf, C. J. And Mr. Justice Sardar Muhammad Sharif Khan, on December 27, 1975. Kb. Abdul Samad Wani, Editor Weekly, `KASHEER', who was allotted a plot alongwith the petitioner and other journalists, on refusal of restoration of his allotment, also challenged the said notification through a writ.petItion. The claim of Mr. Wani was not contested by the Government, and this Court presided over by Mr. Justice Kb. Muhammad Yusuf Saraf, C. J. And myself, restored the allotment in favour of Mr. Wani. At that stage, it was disclosed that the allotment of Mir Abdul Aziz, having identical character, was not cancelled by the Committee. Thus, this Court, among others, considered it a point of merit for maintaining the allotment of plot in favour of Mr. Wani. In view of the judgment of the High Court recorded in the case of Sh. Gulzar Ahmed Fide and another coupled with the order of the Prime Minister, the Authority restored the allotment of plot in favour of the petitioner on June 16, 1976 and delivered possession of the same through Mr. M. S. Tariq, on July 2, 1976. Subsequently, the petitioner sought permission of the Authority for construction of the compound wall. Necessary permission was granted by the Authority on January 9, 1981. On September 22, 1983, the petitioner was informed that allotment of plot in his name stood cancelled by virtue of implimentation of the Government notification, dated December 4, 1973, as such subsequent order of allotment carried no weight. The petitioner feeling aggrieved of this order of the Authority, invoked special jurisdiction of this Court, to seek annulment of the order of the Authority as without jurisdiction and lawful authority. The claim of the petitioner was admitted by the Government The Mirpur Development Authority and the Allotment of Land Committee, however, repudiated the claim of the petitioner and reiterated its stand that by virtue of the provisions of the notification, dated December 4, 1973, the allotment of plot in question stood cancelled. 2. At the time .Of allotment in question, the Allotment of Land Committee, Mirpur was constituted by the Government under the provisions of Allotment of Land Act, 1964. Under the provisions of the said Act and rules framed thereunder, the plots in the the Mirpur Town were allotted by the Committee but the controlling and supervisory powers vested with the Government. Under the scheme of said Act, plots in the New Town were primarily available for allotment in favour of Mangla Dam affected and displaced persons who were residents of District Mirpur and other paits of Azad Jammu and Kashmir. Plots in sector F-2 were allotted by the Government through a Special Committee consauted by it. In the present case, as mentioned earlier, the Government decided to allot plots in Mirpur Town to the journalists as a special case and it was in the light of the decision of the Government that plots were allotted to various journalists, including the petitioner. The notification issued by the Government on December 4, 1973 was of general character as the allotments of plots made by the Committee during a specific period, were cancelled through it. When the attention of the Government was invited to the case of the journalists, the Government felt persuaded to exclude the allotment of plots to the journalists, from the scope of the notification. This was clear from a letter of the Director, Information addressed to the Chairman, Allotment of Land Committee, Mirpur on May 29, 1974. In addition to that, the Prime Minister also ordered the restoratien of allotment in favour of the petitioner on June 10, 1976. In the case of Sh. Gulzar Ahmed Fida and Sardar Muhammad Fayyaz Abbasi, wherein propriety of ihe notification was challenged by the journalists, the Government accepted the claim of the journalists for allowing allotment of plots in their favour, and reiterated its view by admission of the claim of the petitioners, through the Advocate-General. This position was further strengthened when in case of Mr. Abdul Samad Wani, the Government, the Allotment Committee and the Mirpur Development Authority, failed to contest the claim of Mr. Wani, for restoration of allotment in his favour. This is enough to believe that the Government, Mirpur Development Authority and the Allotment of Land Committee, undoubtedly, accepted that the notification was not enforceable in the case of allotments in favour of the journalists. The Government has consistently to its earliest view as in the present case as well, it admitted the claim of the petitioner and issued- an order to that effect. This order is, dated
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January 15, 1985. It advised the learned Additional Advocate-General as well as Mirpur Development Authority not to contest the case of the petitioner. 3. As the Mirpur Development Authority is adamant to repudiate the claim of the petitioner, it is, therefore, expedient to construe the provisions of the notification, for final settlement of the controversy. Where the intention and import of the statute is .Controverted and a true intention of the statute is in doubt, it is permissible to construe the statute in the light of the contemporaneous construction made at the time of enactment of the statute or immediately after its enforcement. Besides that, the statute construed in the light of the usage or course of conduct based upon its construction immediately after its enactment. This is so as it reflected the a acquiescence by Courts, the legislature, the executive and Administrative authorities for a considerable period of time. This view finds help from the analysis, rendered by Crawford in his book, "Statutory Construction" at page 388. It is reproduced as: "Where the meaning of a statute is in doubt, the Court may resort to contemporaneous construction that is, the construction placed upon the statute by its contemporaries at the time of its enactment and soon thereafter for assistance in removing any doabt. Similarly, resort may also be had to the usage or course of conduct based upon a ceitain construction of the statute soon after its enactment and acquiesced in by the Courts and the legislature for a long period of time. As is obvious, the meaning given to the language of a statute by its contemporaries is more likely to reveal its true meaning than a construction given by men of another day or generation." 4. The afore-listed principle is squarely helpful to resolve the controversy as in the present case, the contemporaneous construction made by this Court in Sh. Gulzar Ahmed Fida and Kb. Abdul Samad Wani's cases, referred to above, was conveniently available. In both the cases, decided by different Division Bench, it was consistently held that the allotment in favour of the journalists made by the Allotment of Land Committee, Mirpur, on the recommendation and direction of the Government, was not bit by the mischief of the said notification. The relevant observation of the Court made in the case of Sh. Gulzar Ahmad Fida, is reproduced below : "Mr. B. A. Sheikh, the learned Advocate-General today made a statement at the bar to the effect that the Government, does not contest the petitions and accept the position that the plots of the petitioners were not intended to be cancelled and therefore, the allotment orders in their names may be maintained. ' Under these circumstances, these petitions are accepted-and it is hereby declared that the allotments of the plots made in the name of the petitioners as detailed above, shall remain intact and are not effected by the Government Notification, dated 4-12-1973." ' Second time when Kh. Abdul Samad Wani, Editor Weekly, "KASHEER", challenged the vires of the notification, the .Respondents impliedly admitted the claim of the petitioner in that case by their failure and absence to contest the writ petition. In the circumstances, Mr. Justice Khawaja Muhammad Yusuf Saraf, C.J. Who delivered the judgment on behalf of the Court, made the following observations :- "(3) The plot was allotted to the petitioner in consequence of a Government policy. In two other identical cases, those of Mr. Gulzar Ahmad Fida and Mr. Fayyaz Abbasi, Editors of Weeklies `Jehad' and 'Pak Kashmir', writ petitions were accepted on the same ground. In these two cases, the Government did appear through its Advocate-General and stated at the bar that these plots had been allotted to newspaper editors in recognition of their services and were not liable to be cancelled. The allotment of a plot in favour of Mir Abdul Aziz, Editor Weekly `Insar., is claimed in the petition to have been restored by respondents 1 and 2 after the judgment of this Court in the cases of Mr. Gulzar Ahmad Fida and Mr. Fayyaz Abbasi, even without the intervention of the Court." The construction of the provisions of the notification rendered by the High Court was accepted by the Government, the Allotment of Land Committee and the Mirpur Development Authority, as the
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finding of the High Court was accepted and acted upon without assailing it in the Supreme Court. 5. It is undeniable that the Government was the fountain and truelD source of the notification. The immediate and relevant authority to manifest true intention, import and scope of the provisions of the notification, thus, was the Government. It is already noticed that at the earliest stage when the attention of the Government was invited to the mischief of the provisions of the notification, it frankly conceded that the notification was not attracted in the case of allotment to the journalists, as such it was not hit by its mischief. This was done, if the repetition is excused, as the respondents admitted the claim of Sh. Gulzar Abmad Fida, Sardar Muhammad Fayyaz Abbasi and Kh. Abdul Samad Wani, in addition to the letter of Director, Information and final order of the Government containing instructions not to contest the petition of the present petitioner, passed in the present case. It is well-recognized that practically executive or administrative officers are first to interpret a statute by enforcing it to accomplish the intended object and purpose in daily administrative matters. It is for this that the executive and administrative authorities are made to interpret the statutes long before the Courts are called upon to construe E them. In such position, though interpretation of statutes made by the executive or administrative officers is not binding but as such interpretation is applied and carried through for a considerable length of time. It is always considered advisable that the Courts should keep such interpretation in view for their assistance zt the time of construing the provisions of a statute. Crawford is again referred at page 393 in support of the view. The relevant part is reproduced below :- "As a general, executive and administrative officers will be called upon to interpret certain statutes long before the Courts may have an occassion to construe them. Inasmuch as the interpretation of statutes is a judicial function, naturally the construction placed upon a statute by an executive or administrative official will not be binding upon the Court. Yet where a certain contemporaneous construction has been placed upon an ambiguous statute by the executive or administrative officers, who were charged with executing the statute, and especially if such construction has been observed and acted upon for a long period of time, and generally or uniformaly acquiesced in, it will not be disregarded by the Court, except for the most satisfactory, cogent or impelling reasons." The consensus is that the executive and administrative interpretation of statutes when assumed the shape of a practice and is followed as a matter of course to implement the relevant provisions of the statute, then it is not fair to completely ignore such an interpretation. This principle has been consistently followed by the superior Courts of the country. In Nazir Ahmed's case (I) while settling the proposition of seniority of the cadre of engineering supervisors, it was observed by Mr. Justice Sajjad Ahmad, J who delivered the verdict of the Court, in the following words :- "Where the departmental practice has followed a course in the implementation of the relevant rule whether right or wrong, it will be extremely unfair to make a departure from it after a lapse of many years and to disturb rights that have been settled by a long and consistent course by the practice. This, to say the least is bound to weaken the faith of the employees in the attitude and behavior of the department. "As regards Departmental constructions", that is to say, the construction which is placed in practice on the provisions of a statute or rules by the administrative authorities who are (I) PLD 1970 SC 453 charged with the execution of the statute or the rules Crawford thus observes: "Where the executive construction has been followed fo a long time, an element of estoppel seems to be involved. Naturally many rights will grow up in reliance upon the interpretation placed upon a statute by those, whose duty it is to execute it. Often grave injustices would result should the Courts reject the construction adopted by the executive authorities." 6. In Haji Mian ifuhammad's case (1) while construing the meaning and scope of `Serai' under the provisions of pre-emption law, Mr. Justice Anwarul Haq who spoke for the Court, observed that by virtue of the doctrine of staire decisis, it was permissible to adopt an interpretation which has been
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consistently given by a administrative authority, such interpretation if not opposed to general principle of law, should not be departed from in absence of any compelling reason to contrary. The aforesaid view was relied upon in K. F. Shaifia's case (2) wherein it was observed that the High Court was right in taking note of the interpretation of the notification which was followed by Government Department concerned in interpreting its notification in a particular way. ' In the present case, it is undeniable that the Mirpur Development Authority or the Allotment of Land Committee, as the case may be accepted and consistently followed the view that the provisions of the notification were not enforceable in the case of allotment of plots in favour of the journalists. Therefore, after a period of 10 years in 1983, it is not available) to the Authority to turn round and say that the petitioner cannot avail the allotment by virtue of the notification of December 4, 1973. The Authority having acquiesced by its conduct, was estopped to take a contrary stand. 7. The petitioner cannot be deprived of the allotment of the plot at this stage, from another aspect as well. The Authority though assigned jurisdiction and power to carry out the purpose and object of the development of Mirpur Town, including the disposal of plots, yet it is not the final authority as controlling and residuary powers vested in the Government. Section 48-A postulated that nothing in the Ordinance or any rule or regulation, shall be construed to limit or abridge the power of the Government to deal with any case in such a manner as may appear to it t be just and equitable. The language of section 48-A of the Ordinance 1974 which occupied the field today, was clear that the Government enjoyed inherent powers to pass suitable orders in any case when in its deliberation passing of such order was expedient to meet the ends of justice and equity. The law of allotment of plots is a remedial law. It advances object and purpose of rehabilitation of the citizens in New Mirpur Town but subject to certain conditions. The restrictions and conditions prescribed by law are also for the assistance and benefit of the rehabilitation of citizens, so that optimum benefit is achieved. In this view of the matter, the order of th Government not to contest the case of the petitioner and to allow allotment of plot in his favour, was passed in true spirit of the provisions of section 48-A of the Ordinance. Regulation No, 6 (3) framed under section 47 of the Ordinance also imposed a duty on the Authority to follow the direction of the Government in connection with the disposal and allotment of the plots in Mirpur Town. Therefore, on issuance of the order o the Government. It was not permissible to the Authority to contest the case of the petitioner in derogation to the direction of the Government. (1) PLD 1973 SC 394 (2) 1974 SCMP 465 8. In VIEW of the reasons listed above, it is declared that plot No, 177 situate in Sector F-2, New Mirpur Town, stands allotted to the petitioners and the action of the respondents whereby the allotment is declared cancelled, vide order/letter, dated September 22, 1983, being without lawful jurisdiction, is hereby struck down. Costs shall follow the events. PLD 1986 Azad J & K {{URDU TEXT}} (a) Mohammedan Law- {{URDU TEXT}} A (b) Second appeal- {{URDU TEXT}} (c) Muhammadan jurisprudence- {{URDU TEXT}} PLD 1986 Azad J & K 73 {{URDU TEXT}} -30-6-85 - 33 _t:x. Ji J*11 (2) (a) Civil Procedure Code (V of 1908)0. {{URDU TEXT}}
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(b) Muhammadan Law- {{URDU TEXT}} (c) Muhammadan Law - {{URDU TEXT}} #TBS #TBE {{URDU TEXT}} Muhammad Khan V. Zarina Begum PLD 1975 AJK 27 : - "A Full Bench of the Lahore High Court held in Balyis Begum v. Najmal Ikram Quresei PLD 1959 Lah. 566, that if a Judge came to the conclusion that the husband and wife could not live within the limits ordained by God, it was entitled to dissolve the marriage. This view was dissented to by this Court in Mst. Reshma Bibi v. Muhammad Shafi PLD 1967 AJK 32. This decision (of this Court) was actually announced on 13th May, 1966 vvhen the Pakistan Supreme Court had not as 3et returned any opinion on the subject. The matter came up before the Supreme Cour in Khurshid Bibi v. Muhammad Amin PLD 1967 SC 97. In this case the learned Judges of the Supreme Court have unanimously affirmed the decision of the Lahore Full Bench In PLD 1959 Lab. 566, written by Mr. Justice B.Z. Kaikaus. A perusal of the judgment of the Division Bench in PLD 1967 Azad J & K 32 showis that the learned Judges have taken a contrary view for the following reasons :- (i) Khula' divorce can be affected like other cases of Talaq when pronounced by the husband which means that it is depended upcn the agreement of the husband. (2) The parties being Hanafis, Hanafi Law had to be administered and the same did not empower the Court to dissolve the marriage by Khula'. ' These arguments have been effectively answered and negatived, in the judgments both of the Lahore High Court as well as that of the Supreme Court. With great respect to the learned Judges who took the contrary view, we find ourselves in full agreement with the view taken in PLD 1959 Lab. 566 and affirmed by the Supreme Court in PLD 1967 SC 97. ' Apart from being in agreement with the view lately taken in Pakistan, another reason for us to depart from the view of the Division Bench of this Court is that in our considered opinion, the decisions of the Pakistan Supreme Court should have the same force in Azad Kashmir as they have in Pakistan. Although Azad Kashmir is not constitutionally a part of Pakistan as yet, it is practically as good as Pakistan. Defence, Foreign Affairs, Communications and Currency are being administered by Pakistan ; there are no custom barriers whatsoever ; deficit in normal budget and funds for development are streamed from Pakistan ; legal systems in force are identical and what is more, both have the same ultimate goal, namely, creation of a socio economic order wherein Muslims can order their lives in accordance with the basic tenets of Islam. Besides, the Movement which brought Azad Kashmir into being aims at bringing about the State's accession to Pakistan. It is, therefore, only in the fitness of things that the Supreme Court decision reported as PLD 1967 SC 97 be henceforth followed by all Courts in Azad Kashmir. We may point out that if the Supreme Court decision had preceded and not followed, the Resham Bibi decision of this Court, the D. B. May not have dissented from the Balqis Begum's case and might have, in all probability, like ourselves, respectfully followed the Supreme Court decision... ... ' We may also point out that in course of a sitting of the Islamic Laws Committee set up by the Azad Kashmir Government and attended by us, all its Ulema members who belonged to various schools of the Hanafi Sect such as Deohandi, Barelvis and Ahl-Hadis, were of the unanimous opinion that khula' was not dependent upon the consent of the husband and that the Judge could, in exercise of his own powers dissolve a marriage by the Khula' (Pages 30 and 31). Mst. Resham Jan v. Muhammad Suleman PLD 1977 Azad J K 67 :-
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"In the four instances cited in PLD 1959 Lab. 566, by Kaikaus, who has earned the gratitude of generations in this country for having put the law on the subjecl in its correct and proper perspective, two are from the life of the Holy Prophet (Peace be upon him), the 3rd from the Khilafat of Hazrat Urnar and the 4th from the Khilafat of Hazrat Usman, Khula' was granted in the first two instances on the return of what the woman had received from her husband, in the 3rd case in consideration of ear-rings, perhaps because she had nothing else to offer, and in 4th case, in consideration of all that was owned by the woman. Since it is very clearly stated in the judgment that in the case of Jamila, wife of Sabit, the Prophet (Peace be upon him) told Jamila : "Are you prepared to return the garden that he gave you ? Ye, 0, Prophet of God and even more", said she. The Holy prophet (p.b.u.b.) said ! "No more but you return the garden that he gave to you". ' Dower has been treated in Islam as a check on the break-up of the marriage. If the initiative for tbe break comes from the husband, he is to forego the dower if paid and to pay it, if unpaid and if it is the woman who initiates the break, she is to renounce her right to the dower if unpaid and to surrender it, when already paid. In the two leading cases on Khula PLO 1959 Lah-556 and PLD 1967 SC 97, a decree was granted in the first case on the refund of dower while the subsequent case, was remanded to ascertain the benefits, if any, received by her, so as to make it, it seems, the consideration for Khula'. As it is not in this case, the claim of the husband, that be bad paid her any amount except the dower nor is any other benefit claimed to have passed to her, the learned Sub- Judge was in manifest error in having fixed the Khula amount in…
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