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Writ Petition No. 765 of 1962, decided on 19th April, 1963.

‑Scope very wide‑Provisions of Regulation and ‑Rules framed thereunder to have effect notwithstanding decree obtained from Civil Court‑West Pakistan Land Reforms Rules, 1959.

Pahlumal Motiram v. The Chief Land Commissioner P L D 1961 Kar. 384 ref.

Chief Land Commissioner entitled to discharge functions appertaining to that office irrespective of whether he happens to be Martial Law Authority or not-- Lifting of Martial Law does not affect ambit of authority ‑Constitution of Pakistan, 1962, Art. 225‑Martial Law Orders (Repeal) Order (29 of 1962), Art. 2.

Punctuation not essential part of statute.

-- Review suo motu‑No limitation of time.

Sahibrai v. The Custodian P L D 1957 S C (Pak.) 63 ref.

Kureshi Mahmood Ahmed for Petitioner.

Khalid Ishaq, A. A: G. and Safdar for Respondent.

Dates of hearing : 26th and 27th March 1963.

The petitioner challenges the validity of the order of Mr. I. U. Khan, Chief Land Commis sioner, West Pakistan, dated the 31st of July 1962, by which he reviewed the order dated the 9th of April 1960, passed by Mr. Ahsanuddin his predecessor‑in‑office and set aside the latter order by which Nawab Haji Khair Muhammad Khan, the present petitioner was allowed once again to exercise his choice with regard to the land which he desired to retain. The petitioner is dissatisfied with the loss of this choice and has questioned the legality of the order of Mr. I. U. Khan.

2. The circumstances which have given rise to this petition are that the petitioner who is a big land‑holder, submitted a declaration under paragraph 15 of the Martial Law Regulation No. 64 with the object of surrendering the land which was in excess of the maximum area that could be retained and to retain the land of his choice. According to his learned counsel, objection was taken to his first choice of the land which he desired to retain ; therefore, he submitted another schedule containing the description of the land which he wanted to retain with the following note at the foot of it :‑

"We own lakes in Deh Bhambhani Taluka Sakrand and Deh Fatehpur Jagir Taluka Tando Bago, which cannot be considered as lands. Nor the Government has decided regarding their produce index units. When these questions are decided, we may be given the right to retain the lakes by way of exchange."

The choice indicated in the above‑mentioned schedule was approved by the Deputy Land Commissioner, Hyderabad vide his order dated the 30th of June 1959.

3. On the 24th of September 1959, a circular letter was issued to all Deputy Land Commissioners, West Pakistan, excepting Kalat Division which contained instructions‑

"that lakes will have to be resumed like other ghair mumkin land. After they have been resumed the question of their management may be taken up by the Land Commissioner. It may perhaps be advisable to hand them over to the Games Department."

No action was taken with regard to the lake of the petitioner but, according to his counsel, he apprehended that his lakes would be resumed ; therefore, he applied on the 21st of December 1959, for permission to exercise his option reserved by him as mentioned above for retaining the area of 390 acres and 34 ghunras which was under a lake and to surrender to the Land Commission some other land in lieu of it. This application was rejected by the Deputy Land Commissioner. He appealed against it which was dismissed by the Land Commissioner on the 2nd of February 1960. He then went in revision which was accepted by Mr. Ahsanuddin, as stated above by his order dated the 9th of April 1960. The concluding part of the order is as follows :‑

" . I accept this revision petition and direct that the learned Land Commissioner, Hyderabad, allow the petitioner to retain the area in dispute and surrender an area of equal produce index units from his ceiling. This amendment will not mean much alteration of the holding of the petitioner."

On the 18th of February 1961, instructions were issued under the signature of the Assistant Secretary (Policy), on behalf of the Secretary, Land Commission bearing No. DSH‑87‑793‑L. C. which were partly as follows :‑

"2 .......

(a) . . . . . . . .

(b) exchanges should be allowed on the basis of equality of produce index units, provided the land is situated in the same village and the resumed area is untenanted ;

(c) ,

(d) orders already passed by the local officers should be reviewed, and, if necessary, revised, strictly in accordance with the decision noted at (b) overleaf."

Additionally the authorities discovered at the time of imple menting the order of Mr. Ahsanuddin that the petitioner was not the owner of the entire lake nor was it practicable to partition it. In view of this practical difficulty and of the above instructions Mr. I. U. Khan suo motu reviewed the order of his predecessor and, as stated earlier, set it aside on the 31st of July 1962.

4. Counsel for the petitioner has questioned the validity of the last order on the following grounds :‑

(i) A fresh opportunity ought to have been given to the petitioner to retain the lake after the instructions dated the 24th of September 1959, were issued because lakes were not treated as land at the time at which the petitioner submitted his declaration. The subsequent decision to treat lakes as ghair mumkin land cannot be given retrospective effect.

(ii) The instructions contained in paragraph 2(b) dated the 18th of February 1961, relating to the situation of land could not be carried out so as to affect the order of Mr. Ahsanuddin which was of an earlier date, for otherwise it would amount to giving retrospective effect to the instructions.

(iii) There is a judgment of a Civil Court dated the 28th of March 1957, declaring the petitioner to be entitled to "all the fishery and other connected rights over this lake" which "is a private lake of the plaintiff (petitioner) and does not belong to the defendant (the Government)". In view of this judgment it was not open to the Laud Commission to treat the petitioner as the owner of a part of the lake.

(iv) Even if the petitioner is the owner of a part of the lake, he is admittedly in possession of the whole of it; therefore, he is entitled to retain it in virtue of the instructions dated the 7th of April 1959, which are reproduced at page 348 of Vol. I of the Manual issued by the Government under the title "Land Reforms in West Pakistan". The relevant part of the instructions is as follows :‑

"It is hereby notified that all owners entered as occupants' in respect of land belonging to Government in the reverain areas shall be allowed to retain or acquire subject to the provision of the law or rules, on existing conditions, land of the value of 36,000 produce index units or 500 acres whichever is more as is permitted by paragraph 9 of Martial Law Regulation No. 64."

(v) Land' is defined in paragraph 2(5) of Martial Law Regulation No. 64 as follows :‑

" land means land, including evacuee land, which is not occupied as the site of a town, village, factory or industrial establishment, and is occupied or has been and can be let for agricultural purposes or for purposes allied or subservient to agriculture, such as forests or pastures, or livestock or poultry farms, and includes also the sites of buildings and other structures on such land ;"

This definition does not apply to lakes, though it is not denied that the Land Commission had the jurisdiction to decide whether a given locality was land or not. Such a decision was necessary because the definition is not applicable to all localities unless jurisdiction is exercised to decide whether a particular locality "can be let for" the purposes stated in the definition or not. In the present case such a decision has not been made, according to the petitioner, regarding his lake, therefore, there is no reason to class it as land.

(vi) Mr. Ahsanuddin was a Martial Law Authority when he gave the order dated the 9th of April 1960, which was set aside by Mr. 1. U. Khan, who was not a Martial Law Authority because Martial Law had ceased to be in force at the time of the order of Mr. I. U. Khan. Mr. I. U. Khan being a Civil Authority only, his order could not prevail as against the order of the Martial Law Authority.

(vii) There is a time limit of 10 days for reviewing an order in terms of rule 11 of the West Pakistan Land Reform Rules, 1959, the relevant part of which is as follows :‑

"(1) The Chief Land Commissioner, a Land Commissioner, or a Deputy Land Commissioner may of his own motion or on an application of any party interested made to him in that behalf, within ten days from the date of the order, review, and on so reviewing modify, reverse or confirm, any order passed by himself or by any of his predecessors‑in‑office."

5. After the above grounds were stated by counsel for the petitioner, the A. A.‑G. expressed his desire to state the facts because, according to him, they were by themselves sufficient to expose such a weakness of the petitioner's case as could be sufficient for dismissing it. We allowed him to do so with the consent of the petitioner's counsel, and the facts stated by us above include all of those which were stated by the A. A.‑G. and subsequently by counsel for the petitioner. They did not disclose any weakness of the petitioner's case of such a nature as to enable us to dispose of this petition without hearing further arguments. After stating the facts, the A. A.‑G. anticipated the arguments of the petitioner's counsel and tried to meet them. We would, therefore, not set out his arguments here but would discuss the grounds taken on behalf of the petitioner to support the petitioner's case. The discussion will include the replies of the A. A.‑G.

6. The objection to retrospectivity contained in grounds (i) and (ii) which have been taken by the petitioner's counsel is inconsistent with the reservation that the petitioner had made to exercise his choice once more after the Land Commission decided as to how lakes were to be treated. The Commission decided on the 24th of September 1959, to treat them as ghair mumkin land, and the petitioner applied for exercising his new choice. The question of retaining the land of his choice was thus re‑opened for consideration by his own act, with the result that all of those instructions which were in force up to the time of its final determination had to be followed. No objection ca be taken by the petitioner that retrospective effect was given to the instructions because such effect was not given to them. He is entitled to attack the legality of the orders which were made in appeal, revision or review, on the ground that they were barred by time and thus exclude from consideration those instructions which were issued later than the hearings which were permitted by law. Such an objection has been taken on his behalf in ground (vii), which will be considered hereafter.

7. Ground (iii) is founded on the judgment and decree given in Suit No. 15 of 1955, by a First Class Sub‑Judge, Nawabshah on the 28th of March 1957. The plain answer to this contention is paragraph 3 of Martial Law Regulation No. 64, which is as follows :‑

"3. Regulation to override other laws, etc.‑The provisions of this Regulation, and any rule or order made thereunder, shall have effect notwithstanding anything to the contrary in any other law, or in any order or decree of Court or other authority, or in any rule of customs or usage, or in any contract, instrument, deed or other document."

The above and similarly other sweeping powers have been conferred on the Commission to enable it to carry out its duties unhampered by any outside authority. For a discussion of the vast scope of its authority, reference may be made to Pahlumal Motiram v. The Chief Land Commissioner (PLD 1961 Kar. 384 (FB).

8. Ground (iv) seeks to take advantage of the instructions dated the 7th of April 1959, by removing on their basis the objections that were taken to the executability of the order of Mr. Ahsanuddin. In consequence of those objections, his order was reviewed by Mr. I. U. Khan, but there is no reference to these instructions in Mr. I. U. Khan's order. It shows that the petitioner had advanced two grounds only against review. They were

(i) that the petitioner was entitled to a fresh exercise of his choice for retaining land, and

(ii) that a lake could not be treated as land.

It is not possible in these proceedings to decide as to how far these instructions are applicable to the petitioner's case, because they permit those owners only who are "entered as occupants in respect of" that Government land which is situated in "riverain areas," to retain or acquire Government land "subject to the provisions of the law or rules on existing conditions." We cannot give the benefit of these instructions to the petitioner unless the requirements set out in the instructions are found to have been satisfied, and we cannot make investigations in these proceedings to discover whether they are fulfilled or not. They were not considered by Mr. I. U. Khan because this contention was not raised before him.

9. The fifth ground is inconsistent with the act of the petitioner himself in that he applied for permission to exercise a fresh choice of land. His counsel explained that this was done merely because of the apprehension that the Land Commission which was an extremely powerful body and whose acts could not be questioned by the superior Courts, might resent the audacity of the petitioner to challenge the legality of treating lakes as land ; therefore, accepting its own pattern of thought, applied to it that lakes having been classed as land, only an opportunity to make a fresh choice might be granted to the petitioner. We find, however, that the apprehension, to which counsel has referred, is not a complete explanation of the petitioner's request for exercising a fresh choice. The reason why we come to this conclusion is that, at the time of making a reservation for a fresh choice, the petitioner was obviously aware that lakes were likely to be treated as land although the Commission had till .then taken no steps in that behalf. More over, his counsel has conceded in this ground itself that the Land Commission had the authority to decide whether lakes could be treated as land or not. On the basis of this concession he has built up his argument that no such decision was made, but the latter part of his argument is inconsistent with the stand of the petitioner that the Land Commission did erroneously treat lakes as land. We pointed out to counsel the inconsistencies of his argument, and he explained by saying that they were excusable, because he wanted to meet all possible arguments that could be advanced from the opposite side, and that in doing so, he might appear to be contradicting himself. His attempt may be excus able, but the consequence is that his contentions destroy each other and fizzle away into nothing.

10. Ground (vi) has little in it to recommend itself. Mr. Ahsanuddin was a Martial Law Authority in addition to being the Chief Land Commissioner under the provisions of Martial Law Regulation No. 64, and Mr. I. U. Khan was only the Chief Land Commissioner in accordance with its provisions, but the provisions do not require that the Chief Land Commis sioner must be a Martial Law Authority also. An officer who is duly appointed to the post of the Chief Land Commissioner is entitled to discharge the functions appertaining to that office irrespective of whether he happens to be a Martial Law Authority or not. The change that has come about is the result of the over‑all change in nature of the administration of the country, and is not a factor to be considered for determining the ambit of the Chief Land Commissioner's authority.

11. The last ground (No. vii) taken by the petitioner's counsel has given us moments of uncertain thought owing to, as we have concluded, defective punctuation of rule 11 of the West Pakistan Land Reform Rules, 1959, the relevant part of which has been reproduced above. It is a recognised view that punctuation is not an essential part of a statute and we assumed that its importance qua statutory rules cannot be greater. If we read a coma after the words "of his own motion" and regard the words that follow it up to the end of the words "the date of the order" as constitute a separate provision from suo motu review then, there is no time limit for suo motu review. The petitioner's counsel drew our attention to several provisions of law in support of his proposition that in those instances in which time limit is not provided, the language of the law is usually more definite than simply making an omission in providing a time limit, That may be so, but there can be no objection if the device of omitting the mention of time limit is suitably used. The criticism cannot be that this device should not have been adopted, though the objection can take the form that the device has not been successfully employed or that omission is wrongly read in the provision. In this case the omission appears to us to clearly exist if a coma is read as indicated above, and we are inclined to read it as well as to separate the ideas as to limitation of time with respect to suo motu review and review on application. We are fortified in this view by the observations of the Supreme Court in Sahibraf v. The Custodian (P L D 1957 S C (Pak.) 63). They were made with respect to the Pakistan (Administration of Evacuee Property) Ordinance, 1959, but the main considerations mutatis mutandis apply to the purposes and working‑conditions of Regulation No. 64. Its purposes are ascertainment and seizure of property and its working‑conditions are that multi farious questions arise relating to the suitability of the choice and character of the property and even devolution of title, which questions are not readily answerable with the help of the official record. These circumstances are not amenable to making the orders of the Chief Land Commissioner unchangeable for all time. Therefore, a rule empowering him to review his order suo motu "without limit of time is essentially consistent with reason."

12. In conclusion of all the foregoing, we dismiss the petition.

K. B. A./A. H.

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