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Writ Petition No. 575 of 1975, decided on 3rd May 1976.
--- Para. 32(3) read with Punjab Land Reforms Rules, 1972, r. 5(2) and West Pakistan Land Reforms Regulation, 1959 (M. L. R. 64)- Functionaries constituted or appointed under para. 32(3) of Regula tion 115 and those to whom case may be transferred under r. 5(2) Distinction.
Functionaries to be constituted or appointed under sub-para. (3) of :para. 32 of Land Reforms Regulation, 1972 are special functionaries who are to be assigned special cases and special powers and in this way are distinct from those to whom a case under rule 5(2) may be transferred by the Chief Land Commissioner, because, these functionaries i.e., the later ones are such who are supposed to decide cages arising under M. L. R. 115 of 1972, whereas special functionaries constituted under para. 32(3) are to decide eases of old regulation and the distinction lies in the nature of their powers and the specialty of the cases and not in the similarity of the designation of the functionaries.
-- Paras. 6 & 32(3) and Punjab Land Reforms Rules, 1972, r. 5(2) Rule 5(2) not an order contemplated under para. 32(3) of Regula tion.
-- Paras. 32(3) and Punjab Land Reforms Rules, 1972, r. 5(2)--Scope of r. 5(21-Held, distinct from para. 32(3)-Provisions do not over lap one another.
Para. 32(3) - Constitution and appointment of functionaries Notification dated 15-2-1975 published in official Gazette on 21-5-1975-Held, would be deemed to have taken effect from 21-5-1975 (date of publication).
Mian Akbar Hussain v. West Punjab Government P L D 1954 Lah. 188 ref.
-- Order passed found without lawful authority and a nullity -Con firmation of such order cannot improve its status--Nullity even on c--affirmation remains a nullity.
Yousuf Ali v. Muhammad Aslam Zia P L D 1958 S C (Pak.) 104 ref.
Sh. Ghias Muhammad, Riasat Ali and Riaz Anwar for Petitioner.
J. V. Gardner for Respondents Nos. 2 to 25.
Date of hearing : 26th April 1976.
It is not necessary to mention the lengthy details through which this case had been going on and for the purpose of the order which 1 am proposing to pass, it is sufficient to state that before the promul gation of M. L. R. 115 of 1972, the case in hand was pending before the Chief Land Commissioner Punjab under the previous Land Reforms Regulation (M. L. R. 64 of 1959) in the form of a sun mote Revision. According to sub-para. (3) of para. 32 of the new Land Reforms Regu lation 115 of 1972, the old cases were to be disposed of by such authorities which might be constituted or appointed under the new regulation. In exercise .of that power, a notification on 17-7-1972 was issued, a copy of which exists on the present record, which indicated that the cases which were pending :under the old regulation before the Chief Land Commissioner Punjab, could .be decided by (a) the Chief Land Commissioner, Punjab and (b) the Legal Adviser in respect of the matters transferred to him by the Chief Land Com missioner. However. the present case was decided by the learned Additional Chief Land Commissioner on 13-2-1975. The petitioner filed an application for review on 14-2-1975 pointing out that according to the aforesaid notifica tion read with para. 32 (3) of M. L. R. 115 of 1972, the Additional Chief Land Commissioner could not have heard and decided this case on 13-2-1975, inasmuch as, he was not one of the functionaries mentioned as competent to hear it, The learned Additional Chief Land Commissioner dismissed that application on 27.2-1975, confirming his earlier order, dated 13-2.1975 but without giving any decision regarding his own competency to hear the cases of the present kind. These orders have been challenged by the petitioner in the present writ petition praying that they may be declared as to have been passed without lawful authority by the learned Additional Chief Land Commissioner.
2. Before proceeding further, it is necessary to take notice of para. 32 of M. L. R. 115 of 1972. It reads as follows
"32. Repeal and saving.-(1) The West Pakistan Land Reforms Regula tion (Regulation 64 of 1959), hereinafter referred to as the said Regula tion, is hereby repealed.
(2) Subject to the other provisions of this Regulation, the repeal of the said regulation shall not affect-
(a) the previous operation of the said Regulation or the validity, invali dity, effect or consequences of anything already done or suffered' thereunder; or
(b) any right, title, privilege, obligation or liability acquired, accrued; or
(c) any penalty, forfeiture or punishment incurred in respect of any offence under the said Regulation ; or
(d) any investigation, legal proceedings or remedy in respect of any such right, title, privilege, obligation, liability, penalty, forfeiture or punish ment as aforesaid ; and
any such investigation, legal proceedings, or remedy may be instituted, continued or enforced and any such penalty, forfeiture or punishment, may be imposed as if this Regulation had not been made.
(3) Any proceedings pending before an authority constituted or appointed under the said Regulation immediately before the coming Into force of this Regulation, shall stand transferred to such authority constituted or appointed under this Regulation as the Commission may, by, order, published in the official Gazette, specify in this behalf, and the authority to which such proceedings are transferred shall, in such proceedings, act in accordance with the provisions of the said Regulation, as if it had' been appointed under the said Regulation.
(4) Land vesting in Government under the repealed Regulation and not granted to any person before the repeal thereof shall be disposed of or utilized by Government as far ,as may be in accordance with the provisions of Part V."
3. In exercise of the powers conferred by sub-para. (3) of para. 32, the Punjab Land Commissioner issued a notification, dated 17-7-1972. It reads as follows
Dated the 17th July 1972.
No, D. S. H.-887-72/2898-LC (II).-In exercise of the powers conferred by sub-paragraph (3) of paragraph 32 of the Land Reforms Regulation, 1972, (Martial Law Regulation 115), and in supersession of its notification No. A. S. R.-I-67/72/140-L. C., dated the 22nd March 1972, the Land Commission of the Punjab is pleased to specify that any proceedings pending before the authority constituted or appointed under the repealed West Pakistan Land Reforms Regu lation (Regulation 64 of 1959), immediately before the coming into force of the Land Reforms Regulation, 1972 (Martial Law Regu lation 115), shall stand transferred to authorities constituted and appointed under the said Regulation as under :
Authority constituted or appointed under -Authority constituted or
the repealed West Pakistan Land Re- appointed under the Land
forms Regulation, 1959 (Martial Law Reforms Regulation, 1972
Regulation 64) before whom proceed- (Martial Law Regulation
ings under the provisions of the said No. 115) to whom the pro
Regulation were pending at the time of ceedings shall stand trans
coming into force of the Land Reforms ferred.
Regulation, 1972.
_________________________________________________________________________________
1. Chief Land Commissioner, Punjab. (a) Chief Land Commissioner,
Punjab.
(b) Legal Adviser, in respect
of the matters transferred
to him by the Chief Land
Commissioner.
2. Land Commissioner of a Division. Land Commissioner of the
Division concerned and a
Land Commissioner to whom
a case may be transferred by
the Chief Land Commissioner.
3. Deputy Land Commissioner of a Deputy Land Commissioner
District of the District concerned and
a Deputy Land Commissioner
to whom a case may be trans
ferred.
4. Assistant Land Commissioner of a Assistant Land Commissiones
Sub-Division. of the Sub-Division concerned
5. Sub-Assistant Land Commissioner Sub-Assistant Land Commise
of a Tehsil. sioner of the Tehsil concerned.
BY ORDER OF THE LAND
COMMISSION OF PUNJAB
AMIR AHMAD SIDDIQUI,
Secretary, Land Commission of the Punjab."
4. Later on another Notification, dated 15-2-1975, was issued which was however, published in the Punjab Gazette Extraordinary, dated 21-5-1975. It reads as follows :
Lahore, dated the 15th February 1975,
No. P. 1-6/75/660-L. C. (II).-In exercise of the powers conferred by sub-para. (3) of paragraph 32 of the Land Reforms Regulation, 1972 (M. L. R. 115), the Land Commission of the Punjab is pleased to amend its order No. DSH 887-72/208 L. C. (11), dated the 17th July 1972, as follows
Against serial number (1), the existing clause (b) shall be numbered (c) and the following new clause (b) shall be inserted between clauses (a) and (c)
(b) an Additional Chief Land Commissioner.
BY ORDER OF THE LAND COMMISSION
OF THE PUNJAB.
AMIR AHMAD SIUDIQI,
Secretary, Land Commission of the Punjab."
5. Reading all this material together, the first thing to be taken note of is that the authorities and functionaries to deal with old cases had to be constituted, appointed or authorised under para. 32 (3) by means of an order published in the official Gazette. Proceeding to examine the matter on the principle that when the Legislature lays down a procedure to do a thing, then it should be done in that and that manner alone, it is manifest that as the notification, dated 15-2-1975, was published in the official Gazette only' on 21-5-1975, therefore, it would be deemed to have taken effect from that date and not from any previous date. See Mian Akbar Hussain v. West Punjab Government P L D 1954 Lah. 188. The second thing to be noticed is that the name of the Additional Chief Land Commissioner did not figure in the functionaries earlier authorised, constituted or appointed to bear a pending case, and as such when be heard it on 13-2-1975, obviously, he did not possess any jurisdiction or authority to do so. His order, dated 13-2-1975, looked at from any angle, was thus without lawful authority and a nullity and when he B confirmed the same on 27-2-1975, the status of that order did not improve because a nullity even when confirmed remains a nullity as laid down in Yousuf Ali v. Muhammad Aslam Zia P L D 1958 S C (Pak.) 104. This is apart from the fact that even on 27-2-1975, as his appointment and powers had. not been notified in the official Gazette, therefore, on that date as well, he possessed no jurisdiction or authority to attend to a case of the present kind.
6. When confronted with this situation, learned counsel for the contest ing respondents referred me to rule 5 of Punjab Land Reforms Rules, 1972, as recast on 5-1-1973. It reads as follows
"5. Powers to transfer cases.-(1) The Chief Land Commissioner may, at any stage, for reasons to be recorded in writing, transfer any case pending before any officer exercising any function for the purposes of implementation of the Regulation, to himself or any other officer authorised to deal with the case and the officer to whom the case is transferred, may subject to any special directions contained in the order transferring the case proceed with it from the stage at which it was transferred to him.
(2) The Chief Land Commissioner may transfer any appeal or revision pending before him-
(a) to an officer not lower in rank than a serving or retired Judge of a High Court or a Member, Board of Revenue or Additional Chief Land Commissioner for final disposal and such officer shall have all the necessary powers to hear and dispose of such appeals or revisions ; or
(b) to the Legal Adviser for final disposal and the Legal Adviser shall have all the necessary powers to hear and dispose of such appeals or revisions:
Provided that no appeal or revision involving any question referred to in sub-paragraph (2) of paragraph 7 of the Regulation shall be transferred to the Legal Adviser, and he shall not be competent to hear and dispose of such appeal or revision, except as provided for under rule 4.
(3) A Land Commissioner may, for reasons to be recorded in writing and subject to any order under sub-rule (1), transfer any case pending before a Deputy Land Commissioner, Assistant Land Commissioner, or Sub-Assistant Land Commissioner, as the case may be, to himself or to any other officer subordinate to him, and the officer to whom any such case is so transferred may, subject to any special direction contained in the order transferring the case proceed with it from the stage at which the case was transferred to him."
Learned counsel also referred me to the definition of the word "officer" as con tained in rule 2 (f) of Punjab Land Reforms Rules where it is written that officer means an officer appointed by the Commission and includes serving or retired Judge of a High Court entrusted with disposal of appeals and revisions; an Additional Chief Land Commissioner, a member Board of Revenue, a Legal Adviser, a Land Commissioner, a Deputy Land Commissioner, Assistant Land Commissioner and a Sub-Assistant Land Commissioner argued that as by virtue of notification, dated 17-7-1976, reproduced earlier, the present case (which was a case of Revision) became a case transferred to or pending before the Chief Land Commissioner, therefore, under rule 5 (2), he was competent to further transfer it to an officer not lower in rank than a serving or retired Judge of a High Court or a Member, Board of Revenue, or an Additional Chief Land Commissioner for final disposal and as laid down art the aforesaid rule such officers shall have all the necessary powers to hear and dispose of such appeals or revisions ; similarly he could transfer it to the Legal Adviser for final disposal and when so done, the Legal Adviser shall have all the necessary powers to hear and dispose of such appeals or revisions, provided that, no appeal or revision involving any question referred to in subpara graph (2) of paragraph 7 of the Regulation shall be transferred to the Legal Adviser, and he shall not be competent to bear and dispose of such. appeal or revision, except as provided for under rule 4. Reading the aforesaid provisions of law in this way. it was submitted that the Additional Chief Land Commissioner was competently seized of this case and could hear and decide it under rule 5 (2). In my opinion the contention raised has no merit. Para. 32 deals with a special subject, namely, "repeal and saving", of proceed ings of old M. L. R. 64 of 1959. Sub-para. i3) of that para. lays down a procedure of its own for disposal of the cases mentioned therein and states that any proceeding reading before an authority constituted or appointed under the said Regulation immediately before the coming into force of this Regulation, shall stand transferred to such authority constituted or appointed under this Regulation as the Commission may, by order published in the official Gazette, specifies in this behalf, and the authority to which such proceedings are transferred shall, in such proceedings, act in accordance with the provisions of the said Regulation, as if it had been appointed under the said Regulation. This will show that this sub para. deals with or provides if I can say so, a statutory transfer of old cases only to such authority which may be constituted or appointed under this Regulation as the Commission may by order published in the official Gazette specify. The authority to which an old case stands thus transferred is then to act in accordance with the provisions of the old Regulation as if it has been appointed under the said Regulation. The sub-para., it will thus appear has a scheme of its own. Functionaries to be constituted or appointed under sub-para. (3) of para, 32 are special functionaries who are to be assigned special cases and special powers and in ibis way are distinct from those to whom a case under rule 5 (2) may be transferred by the Chief Land Commissioner, became, those functionaries i.e., the later ones are such who are supposed to decide case arising under M. L. R. 115 of 1972, whereas special functionaries constituted under para. 32 (3) are to decide cases of old Regulation and the distinction lies in nature of their powers and the specialty of the cases and not in the similarity of the designation of the functionaries. Fur instance an Additional Chief Land Commissioner or a Legal Adviser may hear cases under M. L. R. 115 of 1972 but merely by virtue of that designation they will not be able to bear cases under old M. L. R. 64 of 1959, unless they are specifically authorised to do so under para. 32 (3) of the new Regulation. This is all the more clear from the fact as is a common-knowledge, that there was no office of Legal Adviser or Additional Chief Land Commissioner under the old Regulation. However, if once special powers under section 32 (3) are conferred on these officers to decide cases of old M. L. R. 64 of 1959, then they are required to act in accordance with the provisions of the said Regulation as if they bad been appointed under the same. At this stage, Mr. Gardener, learned counsel for the private contesting respon dents, argued that sub-rule (2) of rule 5 can very well be construed to act in the same manner and achieve the same purpose as a special authorisation under para. 32 (3) will do, inasmuch an, when the Chief Land Commissioner transfers any case to any officer mentioned in rule 5 (2) then the transferee officer as laid down in the aforesaid rule shall have all the necessary powers to bear and dispose of the said case, be that a case under the old Regulation or the new regulation. He argued that the authorization contained in rule 5 (2) is itself equivalent to constituting of appointing the transferee: officers as an authority competent to bear cases also of the type mentioned in sub-para. (3) of para. 32, as and when such cases v, ere transferred to them by the Chief Land Commissioner and any independent or separate authori sation about the jurisdiction of the transferee officers, especially under sub-para. (3) of para. 32, was no longer necessary in the face of rule 5 (2). The plea advanced cannot be accepted. Punjab Land Reforms Rules are made as expressly stated therein by the Punjab Land Commission "in exercise of the powers conferred on it by para. 6 of the Land Reforms Regulation 115 of 1972", and as is self-evident not under sub-para. (3) of pats. 32 of that Regulation, end as such. to consider rule 5 (2) as an order contemplated under para. 32 (3) is not justified. That this is the correct construction of the law on the subject is clear from the action of the Punjab Land Commission itself in issuing special and independent notifications dated 17-7-1972 and 15-2-1975. These notifications specifically mentioned; the authorities constituted or appointed to bear old cases. If the officers mentioned in rule 5 (2) already possessed such a jurisdiction, there was no necessity to issue the two notifications hereinbefore mentioned. In the first notification, for example, there are mentioned names of the Chief Land Commissioner and the Legal Adviser competent to hear old cases with the rider that the latter was to bear old cases only when the same were transferred to him by the Chef Land Commissioner. This means that rule 5 (2) was not itself sufficient to bestow jurisdiction on the Legal Adviser to hear old casts of M. L. R. 64 of 1959, unless he was first appointed and constituted as an authority competent to hear it and the case was then and thereafter transferred to him by the Chief Land Commissioner in terms of notification, dated 17-7-1972, and the mere transfer for instance under rule 5 (2) without first constituting the Legal Adviser as an authority under para. 32 (3), was not enough. The same was the position of the Additional Chief Land Commissioner on whom powers were bestowed for the first time under the second notification reproduced above. If as argued by Mr. Gardner, when Rule 5 (21 was already comprehensive on the subject, to post a question why did the Punjab Land Commission issue the later notifications : This Shows that the scope of rule 5 (2) is quite distinct from para. 32 (3) and they should not be held to overlap one another. Read in this way, both the provisions aforesaid can be harmoniously operated upon and any other construction is bound to lead to confusion and create complications. If we compare rule 5 (2) with notifications dated 17-7-1972 and 15-2-1975, it is clear that whereas rule 5 (2) makes mentions of numerous officers to whom the eases can be transferred but the aforesaid two notifications talk only of few privileged functionaries or officers to whom old cases can be transferred or on whom powers for deciding the cases under pica. 32 (3) have been bestowed or who are to be considered as if appointed under the old Regulation, which, however, is not the status of the functionaries mentioned in rule 5 (2) simpliciter. We should try to maintain this division of jurisdiction and power and should not confuse it. The result is that for the ,various reasons hereinbefore mentioned, the contentions raised by Mr. Gardner are not accepted and are hereby rejected.
7, The upshot of the above discussion is that the impugned orders in this case by the learned Additional Chief Land Commissioner are declared to be without lawful authority and of no legal consequence against e petitioner. The case according to the notification, dated 17-7-1972, shall have to be considered as pending before the learned Chief Land Commissioner who is directed to decide the same in accordance with law after hearing all the parties concerned. There shall be no order as to costs.
S. Q. Order accordingly.
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