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Constitutional Petitions Nos. D-889 and D-930 of, 1981, decided on 8th November, 1984.

(a) Land Reform Regulations, 1972 (M.L.R 115)

Paras. 2(7)-& 8-Partnership Act (IX of 1932), S. 4-Person-Partnership firm-Stipulations contained in partnership deed showing intention of partners that they agreed to surrender their share of land to Management of Partnership only temporarily and for limited purpose of sharing profits and losses of Farms-Such partners, held, could not be attributed with intention of permanently divesting themselves of their right of ownership of land and ownership of partners over land remained intact-Partnership firm or Management thereof, could not be said to have become owner of said land only because it came under its control and management.

(b) Partnership Act (IX of 1932)

, Ss. 4, 5 & 6-Land Reforms Regulation 1972 (M. L. R. 115), Para. 2(7)-"Person"-"Partnership"-Attributes of partnership and position of Partnership/Firm in legal terms elaborated-Attributes of partnership stated.-[Words and phrases].

It does not emanate from Status ; it is the creation of agreement between individuals; it is a relation between individuals who have entered into agreement; its purpose is to share profits of a business; the individuals bound in relation of partnership are individually called partners and are collectively called a firm; its business must be carried on by all or any of the partners, acting for all ; and the name under which its business is carried on is called firm name.

Partnership has no independent existence or personality separate from its members. It is just a collective name of group of individuals who have agreed to jointly own property and do business to share the profits. Its rights and liabilities are the rights and liabilities of the partners and are enforceable by or against them individually.

Though a firm may possess some attributes of a personality, it is only a collective name of its members and is not a legal person or entity, distinct and separate from partners.

A firm is not an entity or a person' in law but is merely an association, only a compendious mode of designating the persons, who have agreed to carry on business in partnership.

Although in mercantile usage a firm is deemed to have an existence distinct from the members composing it, the strictly legal view is that it is neither a legal entity nor is it a person.

The members of partnership do not form collective whole distinct from the, individuals composing it, nor are they collectively endowed with any capacity of acquiring rights or incurring obligation. The rights and liabilities of a partnership are the rights and liabilities of the partners and are enforceable by and against them individually.

Bai v. Abdul Aziz and others P L D 1968 Kar. 635; Dulichand v. L T. Commissioner, Nagpur A I R 1956 S C 354 ; S. T. Desai on Commentary on Partnership Act, 1956 Edn., p. 17 and O. P. Agerwala on Caleberated Work on the Indian Partnership Act ref.

(c) Interpretation of statutes-

--Language of legislation admitting two constructions and if construed in one way leading to obvious injustice - Such result, held, not intended unless intention to bring it about had been manifested in plain words-Sense of possible injustice of an interpretation ought not to induce Courts to do violence to well-settled rules of construction

but same may properly lead to selection of one rather than the other of two reasonable interpretations.

Maxwell's Interpretation of Statutes 12th Edn., page 208 and Pakistan International Air Lines v. Sind Labour Court P L D 1980 S C 323 quoted.

(d) Land Reforms Regulation, 1971 (M. L. R. 115)-

-- Para. 2(7)--Partnership Act (IX of 1932), S. 4-"Partnership" not covered by words "association or body of individuals"- Partnership is non-entity having no existence or responsibility separately from its members-Partnership has no rights or liabilities and all rights and liabilities relating to partnership are enforceable by or against its members individually.-[Words and phrases].

I. T. Commissioner v. S. Y. Angidi Chettiar A I R 1962 S C 970; B. D. M. C. Importers Group v. L T. C.-Cum-E. P. T. M. P. A I R 1957 Nag. 4 and Muhammad Noorulla v. 1. T. Commissioner A I R 1961 S C 1043 ref.

(e) Land Reforms Regulation 1972 (M. L. R. 115)-

---. Para. 4(3)-Press note issued by Sind Land Commission Vide Notification No. SLC-1/72/1272 dated 10th May, 1972-Clarification made by Sind Land Commission by such Press Note was nothing but an attempt on its part to give interpretation of word "person" Interpretation of provision was function of Courts and Provincial Land . Commission had no such powers-Press note, therefore, was not legally binding.-[Interpretation of statutes]

(f ) Land Reforms Reguiation 1972 (M. L. R. 115)--

-- Paras. 2(7), 8 & 13(3)-Partnership Act (IX of 1932), S. 4-"Partnership" not a "person"-Individual partner on one hand and firm as distinct from partner on the other hand could not simultaneously

own a property-Partner on joining partnership was not divested of his ownership of property he gives under control and management of partnership--Restrictions contained in para. 8 of Regulation in owning

of land beyond fixed ceiling and question of resuming . excess area of land, held, would not be applicable in case of partnership.-[Words and phrases].

An individual partner on one hand and the firm as distinct from that partner on the other cannot simultaneously own, a property.

A partner on joining partnership is not divested of his ownership of the property he gives under the control and management of the partnership. That being so, the question of vesting of the ownership of the same property in the partnership or the management thereof would not arise.

Thus, if "partnership" does not own any property, the restrictions contained in para. 8 of the Regulation on owning of the land beyond fixed ceiling and the question of resuming the excess area of the land would not be applicable in the case of partnership. Therefore, the word "person" used in the said para. 8 obviously does not cover 'partnership'. It is however true that para. 8 does not only refer to a person owning the land but also speaks of a person possessing the land. The question arises if partnership is in possession of the land surrendered by the partners for the purpose of joint cultivation. Assuming that the land which is the property of the partners when surrendered by them for joint cultivation comes under

superintendence and management of the partnership, still by that reason partnership cannot be held to possess the said land on its own behalf. Its possession of the land cannot be in the nature of possession of a lessee or mortgagee. If the partnership is said to possess the land. its possession is on behalf and for the benefit of its partners unlike the possession of lessee or mortgagee which is clearly for the benefit of the latter. Even if the partnership is held 4s a person' possessing the land, then as provided in para. 13(3) of the Regulation, the area in excess of the fixed limit in its possession will revert to its real owners namely partners. But that again is to be done when the excess area is possessed by a person' for his own benefit. Otherwise co-operative effort of joint cultivation with all economic benefits flowing therefrom will receive a serious set back. Surely it cannot be the intention of the land reforms. In order to construe the word person' in true perspective one cannot lose sight of the intention of the framers of the Land Reforms Regulation. The intention of this legislation is discernable from its preamble which clearly shows that the idea is to avoid concentration of wealth in a few hands and foster its equitable distribution and promote the lot of peasantry. Keeping the above ideal in view, the partnership cannot be held a person' in whose hands the concentration of wealth is-to be discouraged.

Partnership/firm is not a person' either owning or possessing the land for the purpose of para. 8 of the Regulation. Although its sister organizations such as company or corporation find specific mention in the definition of person', partnership is conspicuous by its omission from the said

definition. The omission of partnership from the definition of a "person" is not without significance. The omission appears to be deliberate and intentional.

Khalid M. Ishag for Petitioners.

Mahmood Iqbal for Respondents.

Dates of hearing : 31st October and 1st November, 1984.

JUDGMENT

MUNAWAR ALI KHAN, J.-In Writ Petitions Nos. D-889 of 1981 and D-930 of 1981, the petitioners have sought to challenge the common order of Member, Federal Land Commission (F. L. C.), dated 25-8-1981. The operative part of the impugned order reads as under:

"I have no hesitation in upholding the order of the D. L. C. Hyderabad, who declared Hussainabad Farm as a person in his orders dated 25th September, 1972. The orders of the D. L. C., Tharparkar, declaring Denisar Farm as a conglomerate of persons and not a person itself, are erroneous and are hereby set aside. The Denisar Farm will be treated as a person and the land held by it in excess of the limit prescribed by law shall be resumed."

As common points of law and facts are involved in both the petitions, they are being disposed by this same judgment.

In Petition No. D-889 of 1981, the petitioner's case is that in 1954 they alongwith the private respondents formed a partnership under the name and style Denisar Farms' and jointly purchased the agriculture land in question. Their individual shares in the said- land were in proportion to their respective investments. The land was also mutated in revenue record in the names of the partners in accordance with their shares. However, the entire land was pooled for the purpose of joint cultivation under the control and supervision of the management of the partnership. The object was to secure maximum economic benefits to the partners. At the time of promulgation of M. L. R. 115 (hereinafter referred as the Regulation) individual holdings of the partners did not exceed the limit fixed by the Regulation. As such they were not required to file declarations with regard to excess of the land in their ownership or . possession. However the management of the partnership as a measure of abundant caution filed the requisite declaration in respect of the land in question. The Deputy Land Commissioner (D. L. C.), Tharparkar, by his order dated 20-7-1972 accepted the plea raised by the partnership that the manager of the aforesaid "Denisar Farms" was not required to file the declaration. Meanwhile the Land Commissioner, Sind while disposing the case of Mst. Nusrat Begum who was co-partner in the above partnership but had subsequently surrendered her share in favour of other partners on receiving cash consideration, took a contrary view in his order dated 16-6-1972. Although the petitioners/private respondents were not party in that case, they being affected by the order of the Land Commissioner, Sind, challenged the same in appeal before the Chief Land Commissioner who by his order dated 26-6-1973 held that the "Denisar Farms" was not a person' within the definition of the term mentioned in para. 2(7) of the Regulation. The Chairman, Federal Land Commission purporting to exercise sup motu revisionat powers conferred by para. 29 of the Regulation upset the above order of the Chief Land Commissioner, simultaneously upholding the order of the Deputy Land Commissioner (D. L. C.), Hyderabad in respect of "Hussainabad Farms" which is the subject-matter of the writ Petition No. D-930 of 1981 that the said Hussainabad Farms was a "person" for the purpose of the Regulation, vide order dated 2-12-1975.

The Petition No. D-930 of 1981 pertains to "Hussainabad Farm" which is also a partnership entered into by the petitioners arid some other persons. The said partnership was constituted in 1955 and the partners had purchased agricultural land jointly. Their names were however entered in the revenue record as owners of their individual shares. The object of this partnership also was to pool the whole land so that it could be cultivated jointly for maximising the produce for the benefits of the partners. Pursuant to the promulgation of the Regulation, the management of the "Hussainabad Farms" filed a declaration before the Deputy Land Commissioner (D. L. C.), Hyderabad as a precautionary measure to avoid incurring punishment in the case of the default, even though it held the view that the partners being the owners of their respective shares of the land, the management was not required to file the declaration. As for the partners the petitioners' case was that they too were not under legal obligation to file declarations as their individual holdings did not exceed the ceiling of the land fixed by the said Regulation. However, the D. L. C., Hyderabad by his order dated 25-9-1972 declared the "Hussainabad Farm" as a "person", and allowed it to retain the land only upto the specified limit, holding further that the area in excess of the said limit would be resumed. This order was challenged in appeal before the Land Commissioner who relying upon the decision of the Cbief'Land Commissioner dated 26-6-1973 in the case of Mat: Nusrat Begum set aside . the order of the D. L. C, Hyderabad, vide order of the Land Commissioner dated 28-2-1974. Even though the case was remanded to the D. L. C., Hyderabad for fresh decision, be once again by his order dated 6-6-1974 reiterated his earlier order mainly on the ground that the Press Note SLC-1/72/1272, dated 10th May, 1972 issued by the Sind Land Commission had escaped the notice of the Chief Land Commissioner whose order referred to above was, therefore, not in consonance with the clarification made in the said press note. Consequently the D. L. C., Hyderabad again held the, Hussainabad Farm" as a person. This order too was appealed against before the Land Commissioner who by his order dated 10-10-1974 vacated the same, remanding the case back to the D. L. C., Hyderabad for reconsideration in the light of the Chief Land Commissioner's order dated 26-6-1973. It was at this stage that the Chairman Federal Land Commission, invoked suo motu powers of revision and as stated above he upheld the order of the D. L. C., Hyderabad.

The above order of the Chairman, F. L. C. was called in question in Writ Petition No. 9 of 1976 which was allowed on the ground that the power under para. 29 of the Regulation delegated to the Commission could not be exercised by the Chairman or any member of the Commission sitting singly. The case was accordingly remanded to the Commission for fresh decision. Meanwhile Land Reforms Regulation (Validation of Orders) Ordinance, 1978 (Ordinance XXIX) was promulgated and the Federal Land Commission in view of the said Ordinance ignored the order of the High Court and proceeded to issue directions for resumption of the land. Consequently a second Writ Petition No. 1125/76 was filed wherein the latest action of the Federal Land Commission was challenged. By the judgment dated 7-10-1979, the petition was accepted holding that the effect of remand of the case was that the whole case stood reopened and, therefore, the F. L. C. was required to dispose the entire case in accordance with law. Thus, on the case being remanded second time, the impugned order came to be passed.

We heard arguments at the bar for two days. In course of the arguments, we are also taken through a mass of written material relevant to disposal of the two petitions in hand.

The points highlighted by the learned counsel for the petitioners may be summarized as under :-- .

(1) The two partnerships designated as 'Denisar Farms' and 'Hussain. abad Farms' were not a person' as defined under para. 2(7) of the Regulation and, therefore, they are not required to file declaration in respect of the land under their control and management.

(2) If the partners own the land in question, then the Firm cannot own the very same land. Moreover, para. 8 of the Regulation implies that the law is concerned with the individual irrespective of the capacity in which he owns or possesses the land and it contemplates the possibility of his having more than one such capacity.

(3) The definition of a 'person' mentioned in the Regulation covers all those individuals and institutions which are intended to be included and, therefore, the omission of 'Firm/partnership' from the definition is quiet significant and is indicative of the intention of Legislature.

(4) The press note issued by the Sind Land Commission clarifying the scope of the definition, though correctly lays down the principle inasmuch as that a 'person' as defined in the Regulation includes those who in law constitute a separate legal entity, yet gives an erroneous example of 'Firm' as having such judicial personality. Accordingly the notification being in conflict with the Regulation is to that extent null and void.

(5) On coming into force of Land Reforms Act II of 1977, the pending proceedings including the proceedings in this case had abated and the notification, dated 23rd September, 1978 whereby the abated proceedings were revived was defective and invalid for variety of reasons: firstly it did not specify cases or classes of cases sought to be revived; secondly it was issued after more than a year from promulgation of the relevant law and as such was applied retrospectively which is not legally permissible; thirdly it had the effect of repealing the very provision of law under which it was issued.

On the other hand the submissions made by the learned counsel for the official respondents were as under :

(a) That the words: "association or body of individuals" used in the definition of person' cover partnerships and, therefore, the two partnerships involved in these petitions are nothing but a 'person'.

(6) That the member Federal Land Commission while holding the said partnerships as "person" in the impugned order has not given any finding that the land in question is owned or possessed by these partnerships or that in consequence the excess area held by them will be resumed. In absence of such finding the apprehension of the petitioners is unfounded and accordingly the petitions are not maintainable.

(c) That although pending proceedings abated by force of section 25 of the Land Reforms Act, 1977, they were kept alive by Government notification, dated 23rd September, 1978 which was validly issued in exercise of powers conferred by the aforesaid section. That all cases of Revision were saved by the said notification clearly shows that these cases were saved as a class of cases.

(d) That the power of issuing notification saving the pending cases was manifestly retrospective in nature as the notification could only be issued subsequent to promulgation of Land Reforms Act, 1977 and as such the notification could not be attacked on the ground of delay made in issuing the same.

It is not disputed that "Denisar Farms" and "Hussainabad Farms" are two partnerships which have come into being as a result of two separate agreements between the partners thereof. It is also not denied that the object of the said farms was to carry out joint cultivation of the individual holdings of agricultural land pooled together by the partners so that greater returns could be secured to them in consequence of their joint venture. Before examining the extent and scope of their liability under the Land Reforms Scheme envisaged by the Regulation, it would be necessary first to understand the legal status and position of the said partnerships. As pointed out above the basis of these partnerships is the agreements between the partners. A look at the agreements would reveal that inter alia, it was agreed between the signatories of these documents that "the agricultural land acquired or to be acquired shall be deemed to be the property of the individual partners rateably and each partner shall be entitled to get his share of land partitioned at any time.

A partner may at any time sell or transfer any part or whole of his share in land to other partners.

The profit or loss of the iarm shall bet"shared among the partners

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purpose of ishafing ,pxoAnd -Josses of- the faems: ; They .could not bet

attributed With,iftentiom of pextnaaenrly_ i i divest'ipg tbe'set'ves:of their right J

of ownership of theuland: r: Siiace Ahe-'ownership of -the partners;j6ver the

Lind 171717'f'aFI:=:=Pene.Tsip: ;,:i6_t aaagsincat;, Che epf;FPuld

not be hei d to stave become owner oath,;s d,. nL;.arnly;t euse,-teu .

under its control and ma_ na 11iemqnt.

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msrfpo J ivlib ga etiet'rad in3'.: iattiile3'shi *4h one atidtl*t'acalled -9 3 3c) fnifdiiili" 'ftitdf9' = br alleetwfely a' 'firmt aiirl tire--;tiaiie under ' Jonvhia' tl ii' btiihess Icaftied A is-cued th6i Firth tame'; t t .ir ;c: J;3I u.,s :.

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f fiJ :fall 'ca'Ti: n ' atfa fairifl 'iitsin6ss as' stli i 66'a"Bdliriicse thuddhist

husband and wife canYMg btf busiiufs tA*dIiot pMfers in

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name under wluc tt c

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name.

Keeping the above elements in view, we have to see what can be the P0Aj9ttidf pattnershi>pqfimialept tecma. R6*bhbas r0ancctn wa.tayAlso consider,some authorities cited at the bar. .:-The:firet eade:referrcdtor;iti3;

oth

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MW.oonne tii'iS 'd tvi h'aultrd b4 m .: .zai:i :'i:Jf ;

Azi ,

Arfin n ,.J. after reviewing the entire e

- case law on

e su

eci o '

M IL f> ,-;, t.f. .. ed ;;

"'v y view;,, therefore, on the ,first question is that ,x)pi g,Ji r .'fir f. Y

possess sie attributes or a personality, it is one a collective tiam

j a of its members and i, 'bF ' g person or nt ty

le aT , distinct and

."r,:;s;'.se arate front partners.' ; _ lsf; ),r,, ,)ri .=. i ,_, -. _

I roa zi c ida.79r '

r; m:-,ThC;: outer QaspW : r ':,Indi =,auMw t 1 r:,l'

vlshi J-.c:

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n 'thit ;.the f: lz,'U;t1u5w-rt;zu ,- .taos;aIanbdoivaen:r;.e: has" for.: Bnglisffas vel

for.: ss ,.b of *hieh 4relefdrt6d

nd:bkteded:

*limitd * liy,

_._; ,,.a.,ifiilm:: ,-:HodvartheFesav;t .gettlerkll:; macept u pafto :sliip .firirit

:a;brri

t.71rt >d:a;F1rt;is-trot 90-entity,

srn Ii 19F-perr 7: aw,,,t. ;argly an ags, titio*io, Sin gi>duals andl

owt't,, -,;; > Tq, i:) A 4Y )c d ee la >at tof ath: itl . dttals who l,

tl e3;;.i .l aft rworci a. .F ' na' D

Ibhsl i,

f.exgre sw. ,;:. ll; , ;,c4m en ' u :.

,mt __ tti ;s:>xncrely

- . Wkto,, ha :. .. .p . d#o a'.;g;,.,ctf.;de i na it g;t::persons,

loss- , .,.. .q,Yp agrpiedrto cary.on;bustaess:tlt.prttshtp:'.'',;;,-, :;

rundiWe._,maY: also : quota-_ herein 'below; whatMn Si: T: Destaufrlf&y . commentary on Partnership Act rpIge.;h ylg i6:gd tieh); . ; _. _: ,

std in his

5vad::" Although in. mercantile usage a firm is deented;.-.tb hittvbia ;. ..

'dicistcnce r oiin=-"" distinct .fronf.'the members ,camp-osing'it, jth&t . Te ar .

5dT ' that it is neither: : - gtt'i" is

a legal entityjitrar'-is,yt a:pessbn f' :.)ri:; .. ,. ,..

- :"' 'Sflriilarl - . .

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td _ 6.dltifin)=ha;i sfate'c .

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-With parinet _,1)ips the "e.ae is oi.,erwJSe .;.'1'tte ln;,mb.;rs o f these do not

:.item' forn-I ct)flectit'e whole.disthtct from tire individuals eomrosin it nor

are they collectivel e d

w..

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Y .:. P '. , qu ring rights,

Hi tf s'{ o ' ' artneshlp

are the rights and liabilities of t'h eia ttiit.= ro''eecable byl ri :.:-: bdagainat.,them ittdiv-idu ally, ' .. ..:sr. pit

What emerges frtifia': ra S' ' ;" , , , ,

p' t al a f:, a'"6 6 i

nitrHori> ies is' tti partner-r jiiphas no inqqv

.f..P.r. V a1tCy;separate.fram i:tsimenibers_I

A,ts jusjt,a,oliect.iYe' -.a-zts:of:jroup; 0 indiMiduaiswhorhav&agreedto

jointy.:aW,n:ptoperty ..and.: do.: pus ness,, t4;shar-&,pz0fits,- ' '

1Joojesrarg.;;thg-;riAzs:;,and;,ligbilaes o 't ' Its,; raghts andl

.i0r.

). partam aad_al rrf rceablp

;; 3r., ,,a,gain,S#;tlleftl;-rc i

Having arrived at the above conclusiob1. tb-4oaWW60eed, .o, examine

(#f fj)r: th; purpase-of land refqrms,,r,it, aj -

, . AMA n the tiefinit;off of ison".

As provided in para. of 'ilie1 ltegul'ation no peon':,shaai,,atany.-eidie

own or in any capacity possess land in exce s ..of the c ilin '

the fern: :.The question 'ts wfethr Fthe 's'r . ., ,,.,: _ ,; mentioned

,;, thef Irip iavotv d ih. . e. res

petitidii -ate a. pesbq bvitlid flip. diiih .' , .. , ij, t . P ent

g fr'the alh0e1:OAM e word

persons' is defined in pafai(97jdf>Ite"R itiart;;7n is4 :.

7 . llt;

:.ri h

,'r u, :l t)j ;OW Jj

-izslsrx' s n.,-, 5., a religious, edir cational a charitable institutiorx,

xsJ-:,frrj;,Y Y:;3tr ust,,,Mietber public or private, a,Hindu undivided family, a cotnp ; ny- or association or body of individuals, .044 ooper.ivt or other societ; . but does not ifclude a local authority, .a university

established by lau', a body incorporated'- by the'L6trA or provincial

1(ti) lfj98Ca r.I635 (2) A' It 1 56 S 17"3 ;4''(3 )

law, or an educational institution, a livestock farm or a co-operative farming Society exempted by Federal Government from operation of the Regulation."

It would be noticed that partnership/firm does not find mention in the above definition even though company' has been expressly included and a body incorporated by central or provincial law has been specifically excluded. However, according to the learned counsel for the respondents partnership' is covered by the words : association or body of individuals", used in above definition of person' and consequently it is nothing but a person. He further submitted that while interpreting the definition of person', construction as is manifested by plain words may be placed on it. In support of his argument he relied upon the passage from Maxwell's Interpretation of Statutes 12th Edition, page 208, as reproduced in Pakistan Internationai Air Lines v. hind Labour Court (1). It reads as follows :

"A sense of possible injustice of an interpretation ought not to induce Judges to do violence to well-settled rules of construction but it may properly lead to the selection of one rather than the oiher of two reasonable interpretations. When the language of the legislation admits of two constructions and if construed in one way would lead to obvious injustice, the Courts act upon the view that such a resul

could not have been intended unless the intention to bring it about has been manifested in plain words."

There is no dispute with the proposition laid down in the above passage. The question however is whether partnership is "an association or body of individuals" as mentioned in the definition of person'. The learned counsel for the official respondents expressed the view that partnership being an association or body of individuals is a person within the meaning of para. 2(7) of the Regulation. He built this argument on the strength of three Indian Authorities. In the first case of I. T. Commissioner v. S. V. Angidi Chettiar (2) it was held

"A firm is manifestly a body of individuals and would, therefore, fall within definition of person' ".

The second case is reported as B. D. M. C. Importer's Group v. I. T. C.-Cum E. P. T. M. P. (3) wherein it was observed,

"Suffice it to say that before any group of persons can be called an association of persons it must be established on facts that they are in the nature of partners i.e.x in our opinion the established facts of the case must at least lead to an inference that the members of the group of their volition or free will have joined in a venture with a view to earn profits."

The third case is of Muhammad Noorulla v. I. T. Commissioner (4) wherein it was held :

"The test there laid down was that as soon as there was election to retain the property and manage it as a joint venture, the persons so electing became an association of individuals."

It would be noticed that above three authorities pertain to income-tax cases. In the Indian Income-tax Act the definition of "person" is materially different from that given in the Regulation. Moreover the Income-tax Act is a fiscal law. The object it seeks to achieve is entirely different from

(1) PLD1980SC323 (2) AIR1962 C970

(3) A I R 1957 Nag. 4 (4) A I R 1961 S ,C 1043

that sought to be achieved under the Regulation. Accordiugly construction put on-the word person' used in the Indian Income-tax Act cannot be helpful in interpreting the same word (i. e. person) used in the Regulation. The schemes of the two laws being totally different, the interpretation of the word "person" used in these laws cannot be the same. This is with regard to first mentioned case. So far other two cases are concerned, the facts and circumstances of these cases are distinguishable from the facts and circumstances of the present cases. Accordingly the views expressed in the reported cases cannot be applicable in the cases in hand. -Moreover as stated in the foregoing paragraphs, partnership cannot be held to be covered by words "association or body of individuals." As has beenl correctly argued by the learned counsel for the petitioners, the words "association or body of individuals" seem to have been borrowed from General Clauses Act wherein they are mentioned despite the knowledge that they are not applicable to partnership. It has been repeatedly held by the superior Courts that a firm is not a person as defined in the General Clauses Act. Even otherwise the above words relate to an association o .' body of individual which exists as such in legal sense. As for partnership, it is non-entity having no existence or personality separately from its members. It has no rights or liabilities. All rights and liabilities relating to partnership are enforceable by or against its members individually.

Reference has also been made to press note issued by the Sind Land Commission as contained in its Notification No. SLC-1/72/1272, dated 10th May, 1972. It reads as under :

. . . . . The Land Commission, Sind, is pleased to clarify for the information of all concerned that the definition of the word person' as contained in the Regulation includes only such bodies or individuals as are separate legal entities, such as a firm, a Hindu undivided family, a society or an association with its bye-laws- etc., but it does not inciude members of a family (not being members of a Hindu undivided family), who may be owning shares in land or a holding, or the heirs of a deceased person who have not yet partitioned the estate of the deceased and taken possession of their respective shares. In the case of the latter two classes of persons, each individual will be deemed to be a person to be owning the share or area of land to which he is entitled."

The clarification made by the Sind Land Commission by the above press note is nothing but an attempt on its part to give interpretation of the word "person". The question is whether the said commission was empowered to do so. Part 2 of the Regulation deals with constitution and powers of Land Commission. Para. 4(3) of the Regulation no doubt states K that "A commission of a province shall have all the powers necessary for the implementation of this Regulation within the province." We are doubtful if such power includes the power of interpreting any provision of the Regulation which is obviously the function of Courts. In our opinion the above press note is not legally binding. Assuming that it has a binding force, the learned counsel for the petitioners is correct in pointing out that it is self-contradictory. On one hand it lays down a correct principle inasmuch as that person' includes only such bodies or individuals as are separate legal entities but on the other hand wrongly illustrates the said rule by mentioning "firm"-of one of such separate legal entities. As has been pointed out above firm' is not an entity, nor, has it

separate legal personality or existence apart from its members. In t 's

connection weagsee:wi : - t: "

th the leai tsed-counsel for they -petitioners At.:

otherwise we have,-, to Ioak- tar that' part- ;of the -ifiGW6ft ai'ade it,

above press note which lays down al, principle.' > We- "'lils1b ' a see with' 1t

that illustration i' "

given in the sa-me breaebv of Clrarific6fsbn eantiot b6 con-

strued as a part. of-the principle: On''this: point the -learhed'Coun9ql" has

placed reliance on two authotities nattiely Muhantmad Af z ahv. Corieftds's'iotteY,

Lahore Division. (1)-and hkngnl Ntigpaw.RallWay Co.-Ltd:',:'Rutttrrc/'i" :Rigltii

.. . .J, - r" rf.

and others (2). DID

'In the case of -hlfihisi's' 'fzai5'rt'vraS eli(':=t t"

If the laws (Continiiance sia Force) Order was de igned brthto preven i chaos and to establish an orderly Government with a legal sancttor behind it then it would be only logical to assume that to achieve this object it vested the tower of alteration of existing laws ir. the Supreme authority namely the President and co-equality-in the Clue Adruinistrator of Martial Law and in no one else... ,it seeuas, tq A, therefore, that in promulgating these tvyo orders the M,fi i l

Administrator ZQne' ; , ".'clearly, acted beyond his competence to the extent n' Il '

of repug a cy u existing laws.' ,

__ _ :, .t,n yui'9;t c:on .. ,

In the Indian case the Privy Council observed .:--. . ;:' ::_:: tI ,z -rn=-:,:

; ___ The.illustration does -not confer:upon a ceedit& a rltit" o ''i ivtdr interest, .,upon a.,debt, vehic#,,is :due to himy rwen,he;s.not,esttitled to such interest tinder an.y,pxoviaton of law;'..b

,. k pr-coin an-lyisttaxtq

have tb e effect of modifying the language of th.e, section-,.which , a,Tgne

forms the enactment." --" ' '

Apart from .above;. _ he ; atgun;ant p f ; :the . ,leaned. counsel' :for the etauo"ters that an.dividup f,partner ou vne,,h indt ;the., firm .as..,distinct from ;thai partiier on tltc other "cannot simuftaneo uslyown a property, has a lot of force in it. The legal position of partnership is so clear than it does not admit of any controversy on the point that a partner on Joining partnership is not divested of his ownership of the property he. gives under the control and management of the partnership. That being so, the question of vesting of the ownership of the same property in the partnersbip , o,r: the management thereof would not arise. Thus, if "partnership" doers riot own ary property, the restrictions contained in para. S , of the Regulation on owning of the land beyond fixed ceiling and the question of resuming the excess area of the land would not he applica.blc in the case .of partnership:- Therefaee, the Word' "person'.' used in : the aaid para. 8 obviously does not -eover: partnership'. It is however: true -,that para 8

oes not only refer to a person: owning the land but also speaks of a persbri

..

ossescn io.t the n ar' 'eland. Th : ue s ' rt

g e q t .ti rl panership .is id; po3sessiort n'f

the land surrendered by' the; partners for the:purpose of:joint cultivation..

Assuming that the land: which :is the :-property of the :partners' when

surrendered. by them for joint cultivation_comes.under superintendence And

' anagement of the partnership, - still _ by that,-reason..,. partnership s_ cannot

The held to -possess the.. said land on its own behalf. :Its. possessidn of-the

land cannot .be in -the nature of possession of: ra: ; , lessee --IM,,-mortgagee.., Jf

the partnership is said--to possess, the land; :.its:posses ian; is on.behalf And

for the benefit of itspattners-unlike"the possess%on.of-lessee =orr:isortgagee

which: is clean"y for the .benefit .of the aatten'. Even'if:thcpartnersship is

held as a- person' possessing the tand' :tbdn;as provided in: Para,' .133) ':.of

the'-Regislatiots, the -aeea ia 4teessibf tl:fixer; limit t itirs-itar.. ossessi : f;Il

(1) P t, D t963 S c"Afi1 . .. .-; .,;N. t ::; i; ;),:A;h'R 19:58 1' C 67t;=a

revert to its real owners namely; partnegs, : ut -.-that again is ,to::be done, when the excess area is possessed by a person',for his own .benefit, .. Otherwise, as in the instant case, co-operative effort of joint cultivation with all' econotnicbtnefits flbwiiig;'theceffosrivwill rec6l ve =serious set back.' - Surely it cannot be the, iritenxion' of the land reforms. v=In order - to construe the word petsriis' '-its- trite ;perspecti4e- we canhbt lose=sight of the intention of the framers of . he Latrd --Reforms. Regitlatiors. - The intention o this le illation is -discerifablo 'from' ' its 'reamble tvhiCh clearly shows that the

g .i

idea i's'to- avoid coiicentiatiiYn of wealth' in -a yfew ha'ads and ';fost'er its

equitable distribution and promote ffie 'lot of peasantry. Keeping the

above: ideal in,yiew, the partnership cannot be held.as aw'person' .,in-. .whose

hands-the conceptratim o wealth, is to be discouraged. ..:-,

. J s . Forthe above reasons we have come -to an irresistible. cottelttsiori that Oaxthefshipr firm is not"a-"person" either awning or possessiisg'.the land= for tti8:pucpose of-pAra:. 8 of the Regulation. 'Althougtt-its sister..organ'izations such' as ' cornpatiy ' c3r corporation find specific m ntion in the .definition of ":person"; partnetsfiip is,EOnspicuous by its omission from the said defini-I tion: - ale ate. of the 'considered view r'tliat he omission of partnership from the definition of a llp'erson"v is not without significance. The omission appears to us to be deliberate and intentional ' As both the petitions ar

to succeed on.the above grounds, we need not go into the question of abatement of these cases which were said to be pending at the time of the promulgation of the land Reforms Act, 1977. Accordingly we allow both petitions with no order as to costs, declaring the impugned order dated 25-8-1981 passed by Member, Federal Land Commission (Mr. Amir Uusuf Ali Khan) to be without any .lawful authority and of no legal consequence.'

quence.' on

cati:,_n_TI9V& 'f)az9vbs Vu 1 bsitss6 bstl i3nistg 1y:a ,. ., s.v.

M. z. M. . d D[t Ut

bits t fP- .mofi PSQt r.I ' L I1 >f 85.:-:K,araola -.9 ::;:. f ,.: .T: ., .4F s< n t t,

Before Aj ial Mia>Y dnt1 Taniit=ut-Rehma4; 1i

' - -' = ;s= '

MUHAMMAD IBRAHIM T'aROUCM=arms -LBGn1,-H tR3--:'I tTD 00

Xd b:alil ets btt3oo Do sv . versus _.tss:it s' r . . ,>__:_:;;. >

SIND INDUSTRIAL TRADING ESTATE LTD. XNn 3 _ dT13ittsl"

. '

Respondents - , -

Litters Patent Appeal Nn. 208 of 1968, eci ed>,"ptn t t4-ol'e. r.

1984 - , : :.

-I t)Rl

d ,W; Co

fe N of 1908I- , ;. . ,. , .. .a . . : .j z'iali

-- O. XX, r. 1-High Court ..(Lahore) a Rules ;and Orders., .VQLNF. grit

Chap. IV-F, r. 5-Judgment could not become, invalid merely, fob the reasons that same was givens after expiry, of several months from

"date of he aritg'of arguments-No time for pronouncing judgment was prescribed-Party, if could manifest that on .account of inordinate-v' F delay in pronouncement of judgment' ,Court concerned had overlooked material pieces of evidence/arguments, that may be a ground for setting aside judgment-Case having voluminous evidence, oral as well documentary, some delay, held, was explainable on face of

it-Desirability of delivering judgment without any inordinate delay

so that justiee.must not only be done but must manifestly -appear to

.. m

be done stressed.-(Judgmantl. gyp. 102];4

separate legal personality or existence apart from its members. In,t is connection we agreemith the learned"counsel'fbr tfie p4iti6hets fiat eii

otherwise we have. to=loop to tha* part-'=bf the - Idfiiicatlof ni'ade,1h

fl

above .press note which lays-down a' principle. We -'also- ,'a ree ivi'tlt him that illustration given in Ahe same breach' of blarifieationscaniintbd cottstrued as a part. of- the principle. On. this point the learned- coun ei' bfas placed reliance on twoauthorities namely

.._:3. .... =i'.> .3': _.. 3 r _.: f:r,icl .;t t t :.lr;;.

o Jti th.t V iCis,i s,:.tili,i ':i'I ai

- '- In the case of -Mih'ii im'ad ' zcd i't'vvas h-eld :- s .

fli bwnie 2a

to J If the Laws (Continuance in Force) Order was deIgned both to preveni

i chaos and to establish an orderly Government with a legal sanction

'binvv behind it then it would be only i,)gical to assume that to achieve

this this object it vested, the

li4we t:, -afW*gP p tPx4p9giiaw fix-C

d Supreme authority nmely the President and co-cqualiy in, thqIC;h F#

ale Administrator of Martial Law and in no one else.. .It seems to us

therefore, that in promulgating these, two: orders .]he Martial- Lam

Administrator Zone B' clearly acted beyond :his. competence to the

exteni of repugnancy of existing laws."

.()(. 1 ;tai#ns. rron2i ti

;,3i

In the Indian case the Privy Council observed :-- . ;-._' tf ,t-t..,s_r r; :r;

"The:illtistration.does notconfet-'tipon a cceditdt= a: 'right' 'tip ''ietetiver ,bna y interest.. upon ,a . debt, whichjs Aue to bimi when;he is uo.t,entitled

l r, ., to such-intecest under any proyia#on: of IAw..: .111or.can an: illusttaioi# have the effect of nodif in the lan wage of _xe section- which- a T ,lie

Y g _ g.:. ::.:

forms the enactment." -

Apart from above; the argument of the learned counsel for the

petitioners that an individual partner on one hand and the firm as distinct

from that partner on the other cannot simultaneously own a property,

has a lot. of force in it. The legal position of partnership is so clear that

it does not admit of any controversy on the point that a partner on ioining,

partnership is not divested of his ownership of the property he gives under

the control and management of the partnership. That being so. thepM

question. of vesting of the ownership of the same property in the partner-

ship or the management thereof would not arise. Thus, if "partnership"

does not own any property, the restrictions contained in para. 8 of the

Regulation on owning of the land beyond fixed ceiling and the question of

resuming the excess area of the. land would not be applicable in -the case

,.of partnership. Therefore, the, word "person" used iii _ the *said 'para. 8

'obviously does not -cover.'partnersh.ip'. . It is however. true Ahat para. 8

t - lso speaks, of a' - -person

oes -not only refer to a erson: ownin he land but a y P g

ossessin the land. The uestion arises if partnership.is: id: polsessiono't

g q

the land surrendered by 'the partners for the :purpose ofjoint cultivation-. Assuming that the land: which is.: the : propprty. of the partners' when

surrendered by them for joint cultivation..comes.'under superintendence arid management. of the partnership; -still :by -that,.: reason:. partnership = cannot)

be held to possess the. said' land on its oiun behalf. .=Its possessian ofahel and cannot be in-the nature of possession of-: ca lessee =.or, .'mortgagee:: Ifl the partnership is said to possess, the land, :its posses sioir is:-on.behalf :and for the benefit of its Partners unlike,the possessiow:of,-lessee or mortgagee which is clearly f& :the . benefit . of the latter. Even -if the partnership is held as a arson' possessing the land, then, as provided in pare: 13(3) of the' Regulation, the area in excess of tlr_9 fixed-limit in: its-possession will

3(0 VA, D 'OWISl 'C0 43V 'm"R'.woda Yuo br; ':A I: 'I 14 ;58 i' C,Ojiln ;

';S 11Ti: i I't tt T'tl: .. .;- .t s :. .,. . . ,a . -,W

.,; .. :.:, ;

revert to its real owners namely, tiirtnelsr=. . But 04t'againisAe., be dons when the excess area is possessed by a 'person', f.his own .benefit. .. pherwis as in the instant case, co-operative effort o oint cultivation with all e,

mic- benefits fliwirl 'thertefrom"TVillrd eive' serious= set back. "Surel

econo .

b Ihd'iiiteifiidn of the land reftitiiis. ' In - ordef to construe: the

it cannot e

:; k ' :t#:ne' "ers eetiV e - we=oanaot= lose=sight of the intention

word pet'son .its ,p p .

of the ftaier of

Ahe FLaad --Reforms -Regill, atitirf:=-The intention ;of this

rdablt '-froiii ' its prealnblo Vhich clearly shows that .the

legislatidii'- i rli ce v . -d.,-concetlt,ati of wealt)z - _

feidea ina

-W -.ha nds- and foster' its

i5'ti a of

equitable distribution and promote the- lot 4f peasantry. "' Keeping 'the above, ideal in view, the, partnership cannot be helds:a.., person' 4.i a ,.whos

44dsAe coucentfatim 4f _'wealthl is .to.bc disc ura1. . .

_,, eto an.-irresistible=, conclusion. that

,'. For the =above reasoos:wae have com

A ' ' . is not- a A "person" 'either ovvis:ing or possessing-:fhe-1 and= foil

paxtiiersh p/firm "petlfo.' t r ose of= ara.:''8 of.'the Regulation.- Although its sister.organizations)

such a s ' com'paiiy 'Ot''corporation find specific 'mention in the .definition off "perwn."'partw*rship is _ EObspic ous, by its omission from She said defini-10 Lion, W.e ate .,_of='.the considered"- iew :'that the omission of partnershid front the definition of a'"person -is not -without sigaificanee: The omission)

appears to us to be deliberate and inientional. ' s both the petitions . are) to succeed on the above grounds, we need not go into the question of abate

ment of these cases which were said to be pending at the time of the promulgation of the land Reforms Act, 1977. Accordingly we allow both petitions with

no order as to costs, declaring the impugned order dated

25-8-1981- passed by Member, Federal Land Commission (Mr. AmiS Ilusuf

Ali Khan o .bc without any lawful authority and of no legal conse-

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