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Petitioner: Pir SHAH MARDAN SHAH AND 3 Other VS Respondent: CHIEF LAND COMMISSIONER, SIND
Court Name: Sindh High Court Judge(s): Abdul Qadir Sheikh, Mir Khuda Bakhsh Marri Title:Pir SHAH MARDAN SHAH AND 3 Other vs CHIEF LAND COMMISSIONER, SIND
JUDGMENT
Reported As: PLD 1974 Karachi 375 Result: Petition accepted Judgment JUDGMENT ABDUL KADIR SHAIKH, J.-----The five petitioners in the three petitions have challenged the order passed by the Land Commissioner, Sind dated 23rd September 1972, in review proceedings, and the subsequent appellate order of the Chief Land Commissioner, Sind dated 26th January 1973, by which the original order passed by the Land Commissioner, Sind dated 23rd August 1972, was modified. The main petitioner in these cases is Pir Shah Mardan Shah-II (hereinafter mentioned as petitioner No. 1), who is popularly known as Pir Pagaro of Sind, the Head of religious institution, `Dargah of Pir Pagaro'. The relevant facts leading to these petitions may be stated as under On the promulgation of Martial Law Regulation 115, now known as Land Reforms Regulation, 1972, petitioner No. 1 filed declaration under the requisite Land Reforms Form showing various alienations of his holdings during the period from 1-3-67 to 20-12-1971. After scrutiny of the records, the Land Commissioner, Sind at Hyderabad, by the order dated 23rd August 1972, declared all the alienations from Serial Nos. 1 to 24, except the alienation at Serial No. 4, to be valid under paragraph 7 of the Regulation. The relevant portion of the order reads as follows: --- "The alienations mentioned above at Serial Nos. 2, 3, 5 to 7, 11 to 13 are by way of partition through statement on different dates. The alienees are reported to be in effective possession of th9- land. They are managing it, appropriating produce and paying the land revenue. I hold these alienations are bona fide and therefore declare them to be not void under para. 7 of the Regulation. The alienations mentioned above at Serial Nos. 8 to 10, 14 to 24, are by way of sale through registered deed on different dates. The Revenue Record has been mutated according to consideration passed and reported to be adequate. The alienees are reported to be in effective
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possession of the land. They are managing it, appropriating the produce and paying the land revenue. I hold these alienations are bona fide. I therefore declare to be not void under para. 7 of the Regulation. The alienations mentioned above at Serial No. 4 are by way of gift on 19-2-70. The alienee is non- heir of the declarant. The alienation is hit by Explanation-1I to para. 7(1)(b) of the Regulation. I therefore declare them to be void ab initio." On 19-9-1972 the counsel for petitioner No. 1, Syed Ghous A.I Shah and Abdul Latif Memon Advocates, received intimation under letter issued by the Deputy Land Commissioner, Khairpur that they were required to appear before the Land Commissioner, Sind at Hyderabad, on 29-2-1972, in connection with the review proceedings regarding "Alienation involving Paragraph 7 of M. L. R. 115- Declaration Form filed by Pir Syed Mardan Shah-II." After hearing the learned counsel and Dhani Bux Nizamani, General Attorney of petitioner No. 1, the Land Commissioner, Sind passed the order dated 23rd September 1973, reviewing his previous order to the extent that he held the alienations at Serial Nos. 8, 9, 10, 14, 15, 16, 17, 18, 21, 22, 23 and 24 to be genuine and the remaining alienations as void. Petitioner No. 1 filed an appeal against this order to the Chief Land Commissioner, Sind, but it was dismissed on 26th January 1973. It was in these circumstances that the petitioner No. 1 alongwith other petitioners approached this Court through these Petitions under Article 201 of the Interim Constitution. (i) That the petitioner No. 1 being the religious Head and spiritual Leader of the religious institution known as Dargah of Pir Pagaro in Sind has always stood for Islamic ideology, democratic values and social justice and he was opposed to the so-called Islamic Socialism of the Pakistan People's Party of which the present President of Pakistan is the Chairman. (ii) That the petitioner No. 1 opposed him in the last general elections of 1970 and his relations with the President of Pakistan are in the worst shape ever since then- (1) That the petitioner No. 1 was contacted by Mr. Z. A. Bhutto, the President of Pakistan, on telephone after about one and half months of his taking over as the President and Chief Martial Law Administrator and during the conversation over the telephone the petitioner was threatened "I am not Ayub, I am not Yahya but I am Z. A. Bhutto and I know how to use Martial Law and Martial Law with full force will be used against you." ` This was followed by an order by Deputy Commissioner, Khairpur, purporting to be under rule 32(c) of the Defence of Pakistan Rules, 1971, requiring the petitioner No. 1 that whenever he were to leave Khairpur District he should report the fact to the Deputy Commissioner. (2) That the petitioner No. 1's case of Income-tax was re-opened and several notices were given and adverse orders were passed on 6-4-1972. (3) That the petitioner No. 1 on 14-9-1972 received the letter No. PA/474/72, dated 12-9-72 from the District Magistrate, Khairpur, alleging his participation in the so-called London Plan by a sort of remote control to over-awe, lawful and democratic Government and to show cause as to why action under Rule 32 of Defence of Pakistan Rules, 1971 and section 124-A, Pakistan Penal Code be not taken against him. (4) The petitioner No. 1 replied to the aforesaid letter requiring him to show cause and his reply was published in almost all the daily newspapers of the country on 21-9-1972. In this reply the petitioner No. 1 had also disclosed the telephonic conversation of the President of Pakistan referred above . . . . It is significant that the petitioner No. 1's contentions in this reply have not been refuted by the President uptill now." Apart from this, Mr. A. K. Brohi, the learned counsel for the petitioners raised several questions of law in support of the contention that the impugned orders are without lawful authority. He firstly contended that Rule 10 in so far as it provides for suo motu power of review is beyond the scope of
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the Regulation and is ultra vires on that account. In this behalf he referred to the provisions of paragraph 6 of the Regulation which authorise a Commission to "make rules for carrying out the purposes of this Regulation." The contention was that the grant of review of the orders can by no means be considered as one of the "purposes of the Regulation", and therefore there is no power which enables the Rule-maker to provide for review, much less suo motu review. Mr. A. K. Brohi next contended that the review proceedings were conducted in violation of the mandate contained in the Rules and the impugned orders are void even on that ground. In this behalf he urged as follows: (i) That under Rule 10(1) of Sind Land Reforms Rules, 1972 it is mandatory that the Chief Land Commissioner, a Land Commissioner, a Deputy Land Commissioner, or an Assistant Land Commissioner may of his own motion or on an application of any party interested made to him in that behalf, within 20 days from the date of the order, or if the order is appeal-able within 20 days of the expiry of the date of appeal review, and on so reviewing modify, reverse or confirm any order passed by himself or by any of his predecessors-in-office ; but the order dated 23-8-1972 has been reviewed after more than 20 days of the date of previous order in spite of the fact that the Land Commis--sioner in his order dated 23-9-1972 has clearly admitted that he has been moved by the Deputy Land Commissioner, Khairpur to review his orders. (ii) That the Rule 10 in so far as it provides for suo motu review is beyond the scope of Paragraph 6 of the Main Regulation (M. L. R. 115), and is ultra vires on that account. (iii) That according to Rule 10 (i)(b) of the said Rules "an order shall not be modified or reversed unless reasonable notice has been given to the parties affected thereby to appear and be heard". Under no circumstances could such a notice as was given in this case be regarded as a reasonable notice. (iv) that the impugned orders are also vitiated as being in violation of the principles of natural justice in that no notice of review proceedings was at all given to the donees under the gifts (petitioners 2 to 4 herein) who were also entitled to such notice under the law. (v) That bare perusal of the impugned orders would disclose a biased mind was in action against the petitioner No. 1, and the orders are therefore mala fide in law. So far as the challenge to the impugned orders on the ground of mala fide is concerned, serious exception was taken on behalf of the respondents that the allegations made against the President of Pakistan are preposterous, frivolous, malicious and scandalous, and the maker thereof is liable to action under law. It will be only appropriate to reproduce the following paragraphs of the counter-affidavit filed by Chaneser Khan, Deputy Secretary, Sind Land Commission, Hyderabad "11. That the contents of para. 11 of the petition are vehemently denied. It is specifically denied that the impugned orders are mala fide or ultra wires or that they were passed on the personal grudge of the President of Pakistan or that they were initiated or commenced at the instance of the President of Pakistan. The allegations are preposterous, frivolous, malicious and scandalous and the maker thereof is liable to action under the law. It is submitted that the impugned orders were passed in bona fide exercise of lawful powers duly vested in the authorities passing the orders, and, as shown by the contents thereof, the orders were passed purely on the merits of the case after careful consideration of all the facts and circumstances and the provisions of law applicable to the case and not due to any extraneous consideration. The circumstances recited in sub-paras. A.I) to (iv) showing alleged political and personal differences of the petitioner with the President of Pakistan have been made only to confuse the real issue and the same have no relation whatsoever with the merits of the case which was decided purely on its own merits by the respondents. A (i) That the contents of sub-para. A.I) set out the political and religious virtues professed by petitioner No. 1 and his opposition to the programme of a particular political party which have
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nothing to do with the merits of this case and are, therefore, irrelevant and calculated to side-track the issue. A(ii) With regard to sub-para A (ii), it is submitted that the alleged political rivalry between the petitioner No. 1 and then President of Pakistan has nothing to do with the decision of this case which was decided purely on legal considerations and on its own merits. A (iii) That the contents of sub-para. A (iii) regarding the alleged telephonic conversation between the then President of Pakistan and the petitioner are not admitted for want of knowledge. The petitioner has made this malicious allegation in order to show mala fide on the part of the authorities who passed the respective orders, but it is significant that according to petitioner's own claim the said con--versation with the President had taken place after one and half month of his taking over on 20th December 1971, whereas, the first order in this case was passed by the Land Commissioner on 23rd August 1972, which was in favour of the petitioner No.1. This by itself, shows that, had there been a grain of truth in the allegations of the petitioner the very first order would have been passed against him, and not in his favour. This circumstance by itself further exposes the myth of defence maliciously set up by the petitioner. The rest of the contents in this sub-para. Are also denied for want of knowledge. Besides, the same have nothing to do with the merits of the case in any manner whatsoever. A(iv) That the contents of sub-para. A (fv) relate to a matter with which the Land Commission authorities could not possibly have any concern and are highly irrelevant to the merits and decision in this case. The insinuations made are false and malicious and are denied. A(v) That the contents of sub-para. A (v) have no relevance whatsoever with the merits of the case and have been made only to confuse the issue. The respondents are in no way concerned with any action taken by any authority in Pakistan in respect of any alleged activities of the petitioner. A (vi) That the contents of sub-para. A(vi) which are in con--tinuation of sub-paragraph A(v) have no relevancy whatsoever to the merits of the case and the insinuations made by the petitioner are accordingly denied." Now, in order to appreciate the other contentions raised by Mr. A. K. Brobi, we may firstly reproduce Paragraphs 6, 7 and 8 of the Land Reforms Regulations, 1972, as originally enacted. These read: "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. PART III-RESTRICTIONS ON OWNERSHIP AND POSSESSION OF LAND 7. Certain transfers void.-(1) Save as otherwise provided in this Regulation: --- (a) The 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 twentieth day of December 1971, by any person holding immediately before that date an area of more than one hundred and fifty acres of irrigated land or three hundred acres of un-irrigated land or an area equivalent to fifteen thousand units (calculated on the basis of classification of soil as entered in the revenue records for Kharif 1969 and Rabi 1969-70), whichever shall be greater, shall be void, and the land so transferred or incumbered 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 that date Provided that in the case of a person to whom the provisions of sub-paragraph (2) of paragraph 8 apply, no such transfer or creation of as any right or interest or encumbrance shall be void unless he was holding on the said date an area more than eighteen thousand produce index units. (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 whatso--ever, by any person holding on f first March 1967, an area equivalent to
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more than three 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 deemed always to have been void, and the land so transferred or the land on which the right, interest or encumbrance was so created shall be, and shall be deemed always to have been 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 alienation made by a person in favour of his heir. Explanation l.-For the purposes of this sub-paragraph and para--graph 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 to the creation of any right or interest in or encumbrance on any 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 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 encumbrance. Explanation III.-In determining whether a transaction referred to in clause (b) of paragraph (1) was bona fide or otherwise the Commission 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 ofwhich 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. (2) If any question arises whether any transfer or other transaction is or is not valid under sub- paragraph (1), the decision of the Commission thereon shall, subject to the provisions of paragraph 29, be final. (3) Nothing in sub-paragraph (1) shall apply to any transfer of land or the creation of any interest or right or encumbrance on any land made by a person who held on twentieth December 1971, land in excess of the permissible limits under paragraph 8, after he has surrendered to Government, in accordance with the provisions of this Regulation, the land in excess of such limits. 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 unirri--gated 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 fifteen 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 eighteen 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 authorized by the Commissioner in this behalf ; or (ii) there was installed on his land a tube-well, of not less than ten horse-power." The relevant Rule under consideration is Rule 10 of the Sind Land Reforms Rules, 1972 published in the Gazette of Sind, Extraordinary of 22nd July 1972, which reads as follows: "10. Review.-(I) The Chief Land Commissioner, a Land Commissioner, a Deputy Laud Commissioner, or an Assistant Land Commissioner may of his own motion or on an application of any party
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interested made to him in this behalf, within 20 days from the date of the order or if the order is appeal-able within 20 days of the expiry of the date of appeal review, and on so reviewing, modify, reverse or confirm, any order passed by himself or by any of his predecessors-in-- office Provided that- (b) an order shall not be modified or reversed unless a reasonable notice has been given to the parties affected thereby to appear and be heard ; The first contention raised by Mr. A. K. Brohi in challenge to the vires of the Rules was that the Regulation authorises a Commission to make rules "for carrying out the purposes of this Regulation", and since power of review of the orders cannot be considered as one of the purposes of the Regulation, there is no power which enables the Rule-maker to provide for review, much less suo motu review. It would be seen from the bare reading of paragraph 6 of tae Regulation that review of orders made under the Regulation has been specifically provided for. It is specifically made clear that "a Commission may make rules for carrying out the purposes of this Regulation", including application for the revision and review of the orders made under the Regulation. If the interpretation sought to be placed by the learned counsel on what has been provided for by the Regulation in its paragraph 6 is accepted, then one of the basic and primary rule of interpretation will stand violated that the words of a statute must prima facie be given their ordinary literal meaning. In construing the provisions of a statute the golden rule is to adhere to the ordinary meaning of the words used, and to the grammatical construction, and it is essential to g give effect to the natural meaning of the words used therein. It is only when the language of a Statute, in its ordinary meaning and grammatical construction, leads to a manifest contradiction, or to some inconvenience or absurdity, hardship or injustice, presumably not intended, a construction may be put upon it which modifies the meaning of the words and even the structure of the sentence. Also if language used by the Legislature is ambiguous, and the intention cannot be gathered on a plain reading of the statute, then and then alone the question of assigning a meaning to it by way of interpretation arises, but that again must be in conformity with the other provisions of the statute. If the language is clear, unambiguous and plain in its meaning, there is no scope for the Court to give an interpretation to it which the language cannot bear. As observed by their Lordships of the Supreme Court in PLD 1969 SC 241: "The purpose of construction or interpretation of a statutory provision is no doubt to ascertain the true intention of the Legislature, yet that intention has, of necessity, to be gathered from the words used by the Legislature itself. If those words are so clear and un-mistake-able that they cannot be given any meaning other than that which they carry in their ordinary grammatical sense, then the Courts are not concerned with the consequences of the interpretation however drastic or inconvenient the result, for, the function of the Court is interpretation, not legislation. In construing an enactment, passed by a legislative authority it is also not permissible for the Courts to rely upon oral declarations of the intention of the law-giver, made at the Bar of the Court, if the language used in the legislative enactment is not reason--ably capable of bearing such a meaning. But what is permissible is this that "where the language of a statute, in its ordinary meaning and grammatical construction, leads to a manifest contradiction of the apparent purpose of the enactment, or to some inconvenience or absurdity, hardship or injustice, presumably not intended, a construc--petition may be put upon it which modifies the meaning of the words and even the structure of the sentence", because, "where the main object and intention of a statute are clear, it must not be reduced to a nullity by the draftsman's un-skilful-ness or ignorance of the law, except in a case of necessity, or the absolute intractibility of the language used." Since the Regulation in its paragraph 6 specifically provides that a Commission may make rules for carrying out the purposes of the Regulation, including applications for the revision and review of
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orders made under the Regulation", there is hardly any reason to interpret this provision of law in the manner as to exclude the rule-making power that is clearly provided for and made available to the Rule-making authority in regard to making a provision for review. It is also difficult to accept the contention that providing for power of review is not one of the purposes of the Regulation. It would be seen that the Regulation places drastic restrictions, on owner--ship and possession of land, and also makes provisions for grant of land to tenants, etc. A Commission constituted under Paragraph 4 for carrying out the purposes of the Regulation is authorised by virtue of Paragraph 5 to delegate the powers exercise-able by it to any of its members, officers or authority subordinate to it, subject to such conditions, including provisions as to appeal, revision or review, if any, as may be specified. The Regulation envisages large number of powers of different nature to be exercised by the Commission m order to carry out the purposes of the Regulation. It is inevitable, that orders made under the Regulation for carrying out its purposes may be required to be reviewed, apart from being corrected by way of appeals and other remedies. There is, therefore, no reason to hold that making a provision for review is not one of the purposes of the Regulation. Moreover, if such an interpretation is to be placed then the clear and unambi--guous words of paragraph 8 providing for power to make rules regarding review of the orders shall have to be omitted. There is no reason for making resort to such a recourse.…
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