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Civil Miscellaneous No. 4/MR of 1981, decided on 14th June, 1981.
--- O. III, r. 4-Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S. 42-Petition for leave to appeal signed by Advocate but Wakalatnama neither signed by him nor his name entered therein and only signed by petitioners-Such defects in Wakalatnama, held, do not invalidate petition for leave to appeal and accidental omission of name of pleader from body of Wakalatnama a technical irregu larity-Acceptance can be gathered from acts performed by Advocate Irregularity, held further, can be remedied by getting entry of name of counsel in Wakalatnama and also by getting his signatures.
Shambhu Nath v. Badri Das A I R 1921 All. 210 (2); Mangal Singh and another v. Babu Singh and others A I R 1932 Lab. 134 ; Ram Sarup v. Sahu Bhagwati Parsad and another A I R 1936 All 636 and Malik Sajawal Khan v. The Deputy Commissioner. Sargodha P L D 1968 Lab. 527 Tel.
--- Sched.-Rules framed by Civil Procedure Code, held, meant for advancement of justice anti Rules should not as far as possible be allowed to operate so as to defeat ends of justice-Rules, held further, in nature of enabling provisions and substantial compliance with same ; should be enough.
--- S. 14-Pre-emption-Person claiming pre-emption on basis of certain qualification cannot later be allowed to succeed on ground so omitted even if he in fact possessed such a qualification-Person suing on two qualifications which are also independently recognised by Prior Purchase Act-Suit does not fail for his failure to prove one of such qualifications.
--S. 14(b), secondly and thirdly-Right of pre-emption, held, con ferred on whole line of heirs and not merely on next and nearest heirs at time of sale and right inter se to be determined in order of succes sion i.e. nearer excluding more remote -Determination of question of superior right of pre-emption only plaintiff and vendee and no other relation of vendor should be allowed to step in.
A I R 1936 Lah. 477 ; Muhammad Hayat and others v. Ghulam Murtaza P L D 1949 Lah. 53 ; Jalal Din v. Saeed Ahmed and others P L D 1979 S C 879 ; Allah Din and another v. Prabh Dayal A I R 1938 Lah. 646 ; Muhammad Ali Khan v. Mst. Zawar Nisa A I R 1942 Pesh. 22 and Azad Government of the State of Jammu and Kashmir and another v. Kashmir Timber Corporation P L D 1979 S C (A J & K) 139 rel.
--S. 14, Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)-Right of Prior Purchase Act existed on statute book before enforcement of Constitution Act-Legislature wishing to bring all pre- legislative laws in conformity with Injunctions of Holy Qur'an and Sunnah-Constitution, held, nowhere visualizing that if these laws not brought in conformity with requirement of Holy Qur'an and Sunnah they will be deemed to be null and void.
Faqir Ali v. Standard Bank Ltd. P L D 1979 S C (A J & K) 62 rel.
--Intention of law makers, held, to be kept in view while interpreting law, and Courts should refrain to be wiser than Lagislature and should confine themselves to plain and grammatical meaning which a statute carries.
A I R 1924 Lah. 65 ; A I R 1930 Sind 287 ; A I R 1940 Lah. 27 ; A I R 1942 All. 394 and Limb ,& Co. (Stevedores) (a firm) v. British Transport Docks Board (1971) 1 All E R 828 rel.
-- S. 42-Azad Jammu and Kashmir Right of Prior Purchase .pct, S.14-Pre-emption-Method adopted by Court below to evaluate com pensation amount payable not illegal-No legal question involved justifying grant of leave too appeal-Leave refused
B.A. Shaikh for Petitioners.
Qazi Abdul Ghafoor for Respondents.
This petition for leave to appeal seeks to assail the judgment and decree passed in a pre-emption appeal, captioned Mst. Nargis Bibi and others v. Muhammad Ibrahim and others, by the Azad Jammu and Kashmir High Court on 4th February, 1981. By this judgment the petitioners' (vendees') second appeal was dismissed with costs and the decrees of the Courts below (Sub-.fudge and. District Judge) to the effect that Ibrahim, respondent as com pared with the vendees had preferential right to pre-empt the land, were maintained.
2. Mr. B. A. Shaikh, the learned counsel for the petitioners, in argu ments, submitted
(i) that Ibrahim respondent, who claimed pre-emption for
'Yakjadee' and 'Shareek Khata-wa-Khewat' of the vendor Noor Muhammad, cannot be said to possess the preferential right which only, in the facts and circumstances of the case comes to reside m a person in which two qualifications, to be collateral and co-sharer, co-exist
(ii) that it escaped the attention of the learned Judge in Chambers respondent Ibrahim (pre-emptor) had, in his plaint, claimed ferential right on the ground that he was 'Yakjadee' and Shareek Khata-wa-Khewat' but led evidence only to prove that he is Yakjadee' of the vendor and Yakjadee' in the circumstances of the case, has no right or prior purchase ;
(iii) that the Right of Prior Purchase Act which creates preferential right in respondent Ibrahim, on the basis of kinship being violative of section 31(5) of the Azad Jammu and Kashmir Interim Constitu tion Act, 1974 (hereinafter to be referred as the Constitution Act), is liable :o be declared ultra vires inasmuch as it is repugnant to the Islamic concept of pre-emption ; and
(iv) that the method adopted to evaluate the compensation payable to the petitioners is unwarranted under law.
3. The arguments on the above-stated points were concluded at Mirpurt on 7th April, 1981. However, before writing the judgment it was brought to my notice that Mr. B. A. Shaikh, Advocate, who appeared and argued the case on behalf of the petitioner, does not seem to have been validly appoint ed as the body of the ' Wakalat-Nama' neither enters his name nor the 'Wakalat-Nama' is signed by him to show his acceptance.
4. A notice was, therefore, issued to the learned counsel for the parties to argue the effect of the above-noted omissions. I have heard the arguments addressed at the bar.
5. After giving my considered thought to the issue, I have formed the view that the above-noted defects in the 'Wakalat-Nama' do not invalidate the petition for leave to appeal. My conclusion is based on the following grounds
(i) The omission to enter Mr. Shaikh's name in the body of the Wakalat-Nama, appears to be through mistake. No deep though is required to trace out the reasons. The 'Wakalat-Nama' bears the signatures of the petitioners which show that the petitioner have engaged the counsel. Who is that counsel. There is and was no allegation that the signatures on the Wakalat-Nama' are no those of the petitioners. The fact, which it is not disputed that Mr. B. A. Shaikh had signed the petition for leave to appeal couple with the fact that the Wakalat-Nama' is signed by the petitioners conveys a clear impression that it was Mr. Shaikh who was anointed by the petitioners as their counsel.
(ii) It is well-recognised principle of law that an accidental omission o the name of a pleader from the body of 'Wakalat-Nama' technical defect) is mere an irregularity, and cannot invalidate thl Wakalat Nama'.
(iii) I may quote rule 4, Order III of the Code of Civil Procedure. It provides :-
"No pleader shall act for any person in any Court, unless he has been appointed for the purpose by such person by a document in writing signed by such person or by his recognized agent or by some other person duly authorised by or under a power of attorney to make such appointment."
(Underlining' is mine)
The close reading of this rule would show that the only requirement under the aforementioned provision is that a pleader shall b appointed by a person. It is not visualised that the pleader must formally accept the appointment. Such an acceptance, however, can be gathered from the acts performed by the pleader. In the present case, as elsewhere said, there is no allegation that the petitioners had g not engaged Mr. B. A. Shaikh as their counsel nor it is disputed that the petition for leave to appeal does not bear their signatures. In these circumstances, it is only an irregularity which could be remedied by getting the entry of the name of the counsel in the body of the Wakalat-Nama' and also getting his signature. This was got done b me in open Court.
6. I may here quote some of the reported cases which support my view. In Shambhu Nath v. Badri Das AIR 1921 All. 210 the name of the pleader was accidentally omitted from the body of the Wakalat-Nama'. It was held that it was not fatal for the competency of the appeal.
In Mangal Singh and another v. Babu Singh and others A I R 1932 Lah. 134 the Wakalat Nama filed by the learned counsel presenting the appeal suffered from some what identical defect namely that the learned counsel's name had not been entered in the body of the Wakalat-Nama'. The Court allowed the defect to be rectified. This correction was done even after the period of limitation for filing of the appeal had expired.
In Ram Sarup v. Sahu Bhagwati Parsad and another A I R 1936 All. 636 the name of another lawyer appeared on the Wakalat-Nama by mistake but such formal defect was held to be of no importance.
Malik Sajawal Khan v. The Deputy Commissioner, Sargodha P L 1) 1968 Lab. 527s is also to the same effect.
'[Here in italics]
7. The examination of the aforementioned authorities would show that accidental omission of the name of pleader from the body of the Wakalat-I-Nama is a mere irregularity and it would be too technical to hold that the; Wakalat-Nama' becomes invalid on this account. If was to accept this highly technical view that such omissions (indicated above) are fatal then it would result in making it extremely difficult for the people to overcome the consequences of the accidental omissions which are bound to occur as man is not infallible. It is also important to state that the rules framed by the Code of Civil Procedure are for the advancement of justice and they should not as far as possible, be allowed to operate so as to defeat the ends of justice. These rules are in the nature of enabling provisions and substantial -compliance with them should be enough.
8. It may be stated here that Order 1V, rule 19, of the Azads Jummu and Kashmir Supreme Court Rule. 1978, also provides that every Advocate on-Record shall before acting on behalf of any person or party file in the Registry a power of attorney in the prescribed form authorising him to act. This rule is obviously subordinate to the provisions of C. P. C. which, as observed above, do not affect the validity of the petition for leave to appeal.
9. After disposing of the preliminary point let me advert to the factual aspect of the case. Section 14 of the Right of Prior Purchase Act, which holds field in Azad Kashmir provides
14. Subject to the provisions of section 13, the Right of Prior Pur chase in respect of agricultural land and village immovable property shall vest :-
(a) Where the sale is by a sole owner or occupancy tenant or, in the case of land or property jointly owned or held, is by all the co- sharers jointly, in the persons in order of succession, who but for such sale would be entitled on the death of the vendor or vendors to inherit the land or property sold ;
(b) When the sale is of a share out of a joint property and is not made by all the co-sharers, jointly : -
(Underlining* is mine)
Firstly --in the lineal descendants of the vendor--in order of succession ;
Secondly --in the co-sharers, if any, who are agantes in order of succession ;
(Underlining* is mine)
Thirdly-in the persons, not included under firstly and secondly above, in order of succession, who but for such sale, would be on the death of the vendor entitled to inherit the land or property sold ;
(Underlining* is mine)
Fourthly-in the co-sharers.
If no person having a right of pre-emption under clauses (a) and (b) exercises it then First v--in the owners of the Mahal wherein such agricultural land or property is situate ;
*'[Here in italics]
Secondly-in the tenants having the right of occupancy within the pro perty or agricultural land that is being sold."
10. In the first instance the argument built up by Mr. B A. Shaikh was on the assumption that where the sale is of a share out of the joint land or property and is not made by all the co-sharers jointly (as the present case is) and if a person claims pre-emption as 'Yakjadee' and Co-sharer', as is done in the instant case) but fails to prove that he is also a co-sharer in the land sold, he cannot be benefited by the provisions of clause thirdly' of section 14 of the Right of Prior Purchase Act (hereinafter to be referred as Prior Purchase Act) and permitted to say that a decree for his being Yakjadee', under clause thirdly' of section 14 of the Prior Purchase tact, as to be passed in his favour.
In alternate it had been contended that the plaintiff (respondent Ibrahim) was not the person most nearly related to the vendors and there were other heirs of the vendors who had not chosen to sue and, therefore, the plaintiff was liable to be non-suited. Mr. B. A. Shaikh, to understand him, on the point had given me the following pedigree-table.
Zabardust
------------------------------------------------------------------------------- ------------
Ilam Din Musait Din
------------------- Noor Muhammad
(Vendor)
Wahab Din Abdullah
Muhammad Ibrahim
(Plaintiff)
According to Mr, Shaikh, during the life of Abdullah and Wahab Din, (entered in the pedigree-table) Muhammad Ibrahim was not entitled to succeed to the. property of Noor Muhammad (vendor) and, therefore, he was not entitled to pre-empt the suit land.
11. Now I proceed to deal with the objections raised by Mr. B. A. Shaikh. Ibrahim respondent no doubt was unable to prove to be Shareek a-Khata', and according to Mr. B. A. Shaikh, for his failure to prove so, he loses his sight to pre-empt the land even on the basis of being 'Yakjadee' of the vendor as stipulated under section 14 (b) thirdly of Right of Prior Purchase Act.
12. The argument is misconceived and without substance. Ibrahim based his claim on two-fold grounds : i.e., to be a Yakjadee' and co-sharer ; but he succeeded only to establish that he is a 'Yakjadee' of the vendor. It is no law that if a pre-emptor claims superior right to pre-empt a sale under clause (b), secondly of section 14 of the Right of Prior Purchase Act, for his being 'Yakjadee' and co-sharer but evidence shows that he is only a 'Yakjadee' and falls under clause (b), thirdly of the Act, the case for the reason that with person omitting to claim pre-emption on the solitary ground of Yakjadee' must fail. The settled law is that if a person claims pre emption on the basis of certain qualification he cannot later on be allowed to succeed on the ground so omitted even if he, in fact, possessed such a qualification. But if a person sues on two qualifications which also independently recognized by the Prior Purchase Act. it would not( be said that the suit must fail for his failure to prove one of the( qualifications.
13. The next argument that in presence of nearer heirs the pre-emptor Ibrahim cannot come with a pre-emption suit even under clause (b) thirdly of section 14 of the Prior Purchase Act, is also without substance.
In view of the phraseology of sub-clause (b) secondly and thirdly of section 14 of the Right of Prior Purchase Act, it must be held that the right of pre-emption is reserved in favour of not of any particular individuals existence at the date of the sale or suit but it exists in favour of the whole line of would be heirs. On a proper interpretation of the words of the clause it would appear that it conferred a right of pre-emption on the whole,, line of heirs and not merely on the next and nearest heirs at the time of f sale. The right inter se would be determined in order of succession i.e., the nearer heir would exclude the more remote. It may be remembered that when the question of superiority of the right of pre-emption, under section 14 (b) thirdly of the Prior Purchase Act, is to be determined, one has to only keep in view the plaintiff and the vendee and no other relations of the vendor should be allowed to step in. A I R 1936 Lah. 477 may be quoted on the point which says that the clause permits every agnate and cognate, however distantly related he may lie, to pre-empt in the absence of a suit by nearer heirs who has a right of succession. The sine qua non is the right of succession. The remote heir may sue for pre-emption, if the nearer heir declined or omitted to assert.
14. Some case law on the point. In 'Muhammad Hayat rind others v. Ghulam Murtaza P L D 1949 Lah. 53 it has been observed:-
....it must be held that the right of pre-emption is reserved in favour not of any particular individual in existence at the date of the sale or suit but, in favour of "the whole line of would be heirs". Learned counsel for the respondents posed the question, how would the order of succession be fixed inside one of these lines of heirs, if ascendants and descendants in several degrees were in existence. The answer to my mind is to be found on two considerations namely, firstly that any two lines which derive from the same common ancestor with the vendor would be placed on an equal footing, and secondly, as between the members or representatives of any such line the failure of any member to sue for pre-emption would not debar any descendant of his from suing.
15. The taw enunciated in Muhammad Hayat and others v. Ghulam Murtaza' had been substantially approved in Jalal Din v. Saeed Ahmed and others P L D 1979 S C 879 wherein the issue was very ably concluded with the following observations : .
"It is nowhere laid down in any case, and none was brought to our notice, that if the nearer heir does not sue still his merely berg in existence will be a bar to the suit of the remote or remoter heirs and obviously, there can be no such rule, because, nearer heirs may have their own reasons not to exercise a right of pre-emption, for example; poverty. lack of funds, dislike for landed property or for that particular land, paucity of amenities, resources, means or ability to properly cultivate, handle or develop that land, apprehension of development of hostility and had blood , etc. with the purchaser of others. The order of succession is to be examined, therefore, only in competition with a vendee or a rival suitor, who, in facts has filed a suit and not in abstract. because, pre-emption is a statutory right to enforce which one has to file a suit and it cannot be that even if he has not filed a suit still his right is to be maintained or given effect to in his absence, without his assertion or desire, not by passing a decree in his favour but by precluding the suit of others who have exercised that right and filed a suit for its enforcement."
(Under lining is mine)
It was further held that :-
"It was, then, argued that in Islamic Law all the heirs succeed jointly, and when it is stated that the right shall vest is the persons' in order of succession who, but for such sale would be entitled on the death of the vendor to inherit the land, it meant with reference to the plural word 'persons' that the right vested in the whole body of heirs as a body corporate and not in an individual. Apart from the fact plural word obviously includes singular, the contention, even otherwise, has no merit, because, even if the whole body sued, they took the whole bargain, inter se according to their respective rights. From this one can then easily hold that if some or only one sued they or he took the whole bargain dividing inter se according to their rights and if all sued in separate suits the result would exactly be the same. This is expressly provided for in section 17 (b) of the Act. The word persons' really means and includes every person who in the event of the decease of the existing holder of an estate under the Personal Law would be entitled either immediately or ultimately to succeed to the whole or the portion of the estate of such person. The use of the plural word persons', therefore, does not lead to the inference which the learned counsel wanted to draw from it and any argument based on that construction cannot be accepted.
Moreover, the point raised loses sight of the words "in order of succes sion which in the situation which is being examined, will mean that under Islamic Law if there is a contest between "sharers" or in a given case some "Sharers" or some "residuaries", when for example, succeed simultaneously and no one excludes the other and each succeeds up to the extent of his share, then. as the order of the succession is the same and none succeeds prior and in preference to the other the suit will fail if the pre-emptor and the vendee are heirs of the above categories. However, if the vendee is an utter stranger, then the whole body of heirs, failing them two or more thereof, and failing them any individual of a class or a group can sue for the whole bargain. This position is made clear by section 13 of the Act itself which is headed as "Joint right of pre-emption how exercised" and states that :-
"Whenever according to the provisions of this Act, a right of pre-emp tion vests in any class or group of persons, the right may be exercised by all the members, of such class or group jointly, and, if not exercised by them all jointly: by any two or more of them jointly, and, if not exercised by any two or more of them jointly, by them severally, i.e. individually."
[Here in italics)
This is so, because the right is to vest in the persons concerned 'in order of succession' which simply means the order in which persons inter se would be entitled to inherit. Consequently, there is no scope for introducing the concept, if it can be so termed, "propinquity of relationship . The order of succession is to be determined with reference to the Personal Law of the parties and when that has been determined the person entitled to succeed in order of succession is the person first entitled to pre-empt. If the nearest in order of succession does not seek to pre-empt, then, all the persons next in succession may do so until all the heirs in succession are exhausted. A study of the history of Pre-emption Law in the Punjab will show that the present section 15, so far as relevant for the discussion of the point in hand is concerned, is based on Karim Bakhsh and others v. Jehandad Khan and others where it was held that the expression "in the order of relationship" which was the term then existing in section 12 (b) of the Punjab Laws Act IV of 1872 had no reference to degree of propinquity but was equivalent to "order of succession" in case of landed property. In that case, under custom ; the plaintiff was 4 degrees removed from the vendor, the vendees 6 degrees, but their rights of succession were identical and it was held that they had equal right to pre-emption. Then commencing Bahadur Khan v. Karam Khan and others on those very lines which was approved by the Privy Council in Sabz Ali Khan v. Kar.m Muhammad Khan."
(Underlining. is mine)
16. On the side of Indian Jurisdiction, in 'Allah Din and another v. Prabh Dayal' (A I R 1938 Lah. 6461) it has been stated that the effect of section 15 (b) Pre-emption Act, is to confer the right of pre-emption in respect of agricultural land upon the whole line of heirs of the vendor and not merely on the nearest heir at the time of the sale, but the priority of the right between claimants is to be determined in order of succession.
'Muhammad Ali Khan v. Mst. ZaH,ar Nisa' (A I R 1942 Pesh. 22) affirmed this view. It was observed in that case:-
"When deciding the question of the superiority of the right of pre emption under section 15. Cl. (b), thirdly, the Courts have only to keep in view the plaintiff and the vendee and no other relations of the vendor. They have to take it that the vendor has died and have to find out as to who of the parties before them ...the pre-emptor and the vendee is entitled to inherit his property to the exclusion of the other. The person who is so entitled has a superior right of pre-emption. If he is a pre-emptor he gets a decree; and if he is a vendee, the pre emptor's suit is dismissed. On the other hand if it is discovered that they are entitled to inherit equally their right to pre-empt is declared to be equal and the pre-emptor fails."
17. Let me now deal with the point as to whether Prior Purchase Act, which creates preferential right in respondent -Ibrahi m, on the basis of kin ship with the vendor, as contended, is violative of the section 31 (5) of the Azad Jammu and Kashmir Interim Constitution Act, 1947, and as such ab initio a void instrument.
[Here in italics]
(1) A I R 1938 Lah. 646 (2) A I R 1942 Pesh. 22
Mr. B. A. Shaikh, the learned counsel for the petitioner, had based his arguments on a reported case of this Court captioned "Azad Government of the State of Jammu and Kashmir and another v. Kashmir Timber Corpora tion PLD1979SC(AJ&K)139. That case is distinguishable and have no similarity with the facts of the present case. In that case it was argued that section 3 of Timber Trade (Nationalisation) Ordinance of 1976, which provides that the trade of felling, extraction and conversion of trees shall only be carried on by the Government or a corporation wholly owned or controlled by the Govern ment to the total exclusion of the other persons, and the Government, or any person acting on behalf of the Government, shall not enter into any agreement with any other person for sale of trees whether standing, felled or fallen', and which was enacted after the enforcement of the Constitution Act (hereinafter to be referred as the Constitution Act) being repugnant to the mandate of Holy Quran and Sunnah, is ab initio void.
On these premises of the arguments it was observed by this Court
"It was also contended that in subsection (5) it is not stated that no law shall be made which is repugnant to the teachings and requirements of Islam but what is stated is that no law shall be repugnant to the teachings and requirements of Islam. On these premises it was argued that subsection (5) does not relate to the future laws but has reference to the existing law. It is strange that the Constitution Act should provide for the existing laws to be brought in conformity with the teachings and requirements of Islam as set out in the Holy Quran and Sunnah but should leave the Legislature free to make any law in future against the teachings and requirements of Islam."
It would be thus noticed that the law enunciated in that case has no relevancy to the controversy in the instant case. Unlike Timber Trade Nationalisation Ordinance, 1976, the Right of Prior Purchase Act was on the statute book even before the enforcement of the Constitution Act and the Legislature had only wished that all the pre-legislative laws should be brought in conformity with the injunctions of Holy Quran and Sunnah. The Constitution Act nowhere visualises that if these laws are not brought in conformity with the requirements of Holy Quran and Sunnah, they will be deemed to be null and void.
On the point I have a direct authority of this Court. In a case entitled "Faqir Ali v. Standard Bank Ltd." PLD1979SC(AJ&K)62 the issue which fell for determina tion was as to whether the interest on the loan advanced by the bank to the appellant can be realised from him, as it is against the mandate of Holy Quran and Sunnah. Repelling the argument if was observed by the Court :-
We have given due consideration to the arguments addressed in this respect and our view is that the stand taken by the learned counsel for the appellant is not tenable. There can be no question that the Holy Quran and the Sunnah contain the Supreme divine law for all Muslims in Azad Kashmir as elsewhere but the whole law contained therein has not as yet been enacted as the Law of the country' since all the commanding and prohibitions contained in the Holy Quran and the Sunnah have not been codified in Azad Kashmir. According to the very definition cited by the learned counsel for the appellant the term "codify" means "A systematic collection or digest of the Laws of country or of those relating to a particular subject". These laws of a country would make the laws enacted by the Parliament or some other authority vested with such powers under the Constitution or other machinery as distinguished from divine laws which cannot be turned as laws of a country unless they are so enacted or codified."
It was further observed :-
"Thus, unless and until the Divine Laws are brought on the statute book through proper legislation, they cannot be regarded as codified laws of the country however desirable or even necessary it might be for a Muslim country. Our Legislature has already covered a good ground in this respect by enacting 'Azad Jammu and Kashmir Sanctity of Ramzan Act, 1971,' 'Azad Jammu and Kashmir Prohibition of the Use of Intoxicants Act, 1973,' 'Azad Jammu and Kashmir Prevention of Gambling (Masiri) Act, 1973.' Azad Jammu and Kashmir Zakat Act, 1974,' Azad Jammu and Kashmir Zakat Produce (Agriculture) Act, 1974.' The Azad Jammu and Kashmir Islamic Tazeerate Nifaz Act, 1974,' Azad Jammu and Kashmir Khumar Act, and Azad Jammu and Kashmir Ramzan Act, etc. These Acts have been brought on the statute book in compliance with the mandate contained in sub section (5) of section 3 of the Constitution Act. These acts are in conformity with the Holy Qur'an and the Sunnah. But so far as the Contract Act is concerned it has not been Islamised so far. Therefore, the term of a contract relating to loan is not hit by either section 31 (5) or section 48 of the Courts and Laws Code Act. Azad Jammu and Kashmir Islamic (Penal) Laws Enforcement Act, 1974, is an example of such an enactment whereby certain 'Hudoods' have been brought on the statute book. But so far as Riba is concerned no such enactment has been made so far. Rather after the .Courts and the Code of 1949, in 1959. Azad Jamanu and Kashmir Adaptation of Laws Act, 1959 was passed in Azad Jammu :and Kashmir whereby certain laws of Pakistan were adapted. Contract Act. is one of such adopted laws which does not debar interest as a teal, of contract. Hence we are unable to agree to the proposition that charging of interest is legally barred in Azad Kashmir."
18. Section 31 (5) of the Constitution Act which roads :-
"No law shall be repugnant to the teachings and requirements of Islam as set out in the Holy Quran and Sunnah and all existing laws shall be brought in conformity with the Holy Quran and Sunnah."
shows that the existing laws will remain on the statute book till they are amended or repealed to bring at par with the requirements of the Holy Quran and Sunnah. No other interpretation is possible because the words clearly indicate, the intention of the law-makers. It is settled that a law is to be interpreted in accordance with the intention of the Legislature and the Court should refrain , to be, than the Law Makers.
19. On the point in A I R 1924 Lah. 65, it has been observed by Shadi Lal, Chief Justice at page 67 :-
"It is not, however, for the Court to speculate as to the intention of the Legislature if that intention has not been carried into effect by the language used. As pointed out by Maxwell in his book on the Interpretation of Statutes, 16th Edition at page 10 "when the words admit of but one meaning a Court is not at liberty to speculate on the intention of the Legislature and to construe them according to its own notions of what ought to have been enacted. Nothing could be more dangerous than to make such considerations the ground for construing an enactment that is unambiguous in itself. To depart from the meaning on account of such views is, in truth not to construe the Act, but to alter it. But the business of the interpreter is not to improve the statute it is to expound it. The question for him is not what the Legislature meant, but what its language means ; i. e. what the Act has said that it meant. To give a construction contrary to, or different from, that which the words import or can possibly import, is not to interprete Law, but to make it, and Judges are to remember that their office is jus dicere, not jus dare."
20. Again in A I R 1930 Sind 287, Rupchand, Acting Chief Justice, at page 293, made the following observations :-
"But the Judges are not responsible for Acts passed by the Legislature and in the words of Lord Bacon they ought to remember that their office is jus dicere and not jus dare, to interpret the law and not to make law or give law. It is their duty to abide by the words of the statute without attempting to reform it according to the supposed intention of the Legislature, or exclude cases which fall within the express meaning of the rules in order to make the law reasonable : -A. E. v. Lockwood ; Rex - v. Forde ; Hiriomal v. Hazari Singh; Emperor v. Nur Mahomed Palt."
21. In A I R 1940 Lah. 27 the learned Judge, Mr. Justice Din Muhammad, came to the conclusion that a Court of law is not justified in going beyond the plain word of the Act to speculate as to what Legislature intended to enact. A cardinal principle of rule of Interpretation of statutes is that the words should be interpreted in their plain grammatical meanings.
22. In a Full Bench case reported as A I R 1942 All. 394, Iqbal Ahmed, Chief Justice at page 395, reproduced in verbatim the observations made in a Full Bench case decided earlier in 1906 by Kekewich, J. , speaking for the Court observed ;-
"We are not dealing with a technical word, but with a word in common use in the English language and it is one which has no technical mean ing whatever. The rule in such cases is to construe, the word accord ing to its popular and colloquial meaning."
In this very judgment, at page 396, it has been stated :-
"When the words used by the Legislature in a statute are clear it is not permissible for the Courts to depart from the ordinary and plain meaning of the words used on the mere supposition that intention of the Legislature was otherwise than indicated by the plain and ordinary interpretation of the words used."
Limb do Co. (Stevedores) (a firm) v. British Transport Docks Boord(1971) 1 All E R 828 also lays down identical law. At page 836 of the report it is observed : -
"If it is clear and obvious that Parliament has so ordered, and there is no other way of construing the words of the Act then one is bound to so construe them."
23. It is thus evident that the Courts always showed reluctance toll import any other meaning to a word used in a statute except the plain and grammatical meaning which it carries.
24. Let me now determine the last point as to whether the method adopted to evaluate the compensation amount payable to the petitioners is unwarranted under law. In this case two Commissioners have calculate different amount of compensation and the lower Courts have allowed the petitioners to have average of the amount determined by the Commissioners.
25. I do not find any illegality in the method in determining the, compensation amount. Even Mr. B. A Sheikh, Advocate, when asked to show how the compensation in the facts and the circumstances of the cases is to be determined was unable to give me any alternate method for deter mining the compensation amount. The argument, therefore, being without force, is repelled.
In view of the position of law stated above, it would be said that no legal question is involved to grant leave to appeal. The leave to appeal is therefore, disallowed.
Stay order issued on 3rd March, 1981 automatically comes to an end.
M. Y. H. ---- Leave refused.
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