P L D 1976 Karachi 571 (PLP)

KHUDA BAKHSH MARRI, J.-These 4 Constitutional Petitions under Article 199 of the Constitution were heard together and will be disposed of by this single judgment as the respondents in all the cases are the same and the same legal points are involved in these petitions.

2. The facts shortly are that the petitioners claim to be owners of certain land in district Kachhi of Pat Feeder Area in Baluchistan. The district since had been divided into 2 districts of Kachhi and Nasirabad. By Martial Law Regulation No. 117 (Land Reforms Baluchistan Pat Feeder! Canal) Regulation, 1972 it was declared under paragraph 4 that all land in the district of Kachhi (the then district Kachhi) is and has always been State land and vests in Government free from all encumbrances. Under para graph 7 of the aforesaid regulation it was provided that only a person who immediately before coming into force of the Regulation had a right or interest in any land resumed under the Regulation may within 60 days of the coming into force of the Regulation apply to the Deputy Commissioner (later on amended to read as "Land Reforms Officer") within whose district such land is situated for grant of land to him. It was further provided that Land Reforms Officer after such enquiry as he may deem necessary, and if satisfied that the said person had a valid and subsisting right, grant to him the land= resumed under the Regulation. The petitioners filed applications before the Deputy Commissioner, Karachi .under paragraph 7 of M. L. R.

117. On behalf of Collector Kachhi a reply was filed. The petitioners thereupon filed a replication, marked Annexure "C".

3. M. L. R. 117 was amended by the Land Reforms (Baluchistan, Amendment) Ordinance, 1973, whereby the words "Deputy Commissioner were substituted by "Land Reforms Officer" who was defined as an officer appointed as such by the Provincial Government. Accordingly the petitioners'' applications came up for hearing before the Land Reforms Officer at Jhatpat who consolidated all such cases and recorded evidence jointly and disposed of them in favour of the petitioners by his order dated 23-2-74. It may be noted that the respondents Nos. 4 to 63, zamindars of the area also filed applications that they should be made parties and evidence on their behalf was recorded by the Land Reforms Officer.

4. Under M. L. R. 117, there was no provision of appeal against the: order of Land Reforms Officer neither paragraph 15 of the Regulation: specifically gave to the Government any powers to make any rule granting the remedy of an appeal to any party. However, the Provincial Government framed the Land Reforms (Baluchistan Pat Feeder Canal) Rules, 1972, which were published in the Baluchistan Gazette, Extraordinary, dated 8-6-1972 and, by Rule 12 of the said Rules, an appeal was provided against an order passed, by Deputy Commissioner under paragraph 7 of the Regulation. Rule 12 is as under:- "12.-(1) No appeal shall lie against the order of the Board of Revenue passed under para. 5(3) of the Regulation and the order so passed shall be final. (2) Any person aggrieved by an order passed by the Deputy Commis sioner under para. (7) of the Regulation may file an appeal to the Board of Revenue. (3) An appeal shall be presented within 10 days from the date of the order appealed against. (4) The order passed in appeal shall be final."

5. It is the case of the petitioners that Rule 12 is ultra vires of the statute M. L. R. 117 of 1972, because no appeal lies against an order passed by Deputy Commissioner (Land Reforms Officer) passed under paragraph 7 of M. L R. 117 to challenge the order dated 23-2-1974, in favour of the peti tioners by the Land Reforms Officer, Kachhi, Annexure `D'. hence the appeals filed by Collector of Kachhi as well as respondents 4 to 63 purported to have been filed under Rule 12, are ultra vires to the statute itself.

6. Upon filing the appeals notices were issued to the petitioners . and it appears they were fixed before Member, Board of Revenue, Baluchistan on 22-6-1974. It may be noted that the appeals are still pending because in the meanwhile these constitutional petitions were filed and Interim stay was granted to the petitioners. It is also the grievance of the petitioners that the Land Reforms (Baluchistan Pat Feeder Canal) Rules, 1972 have been amended by notifications dated 14-5-1975 and 13-9-1975 of the Government of 'Baluchistan, Annexures "H" and "I". The changes brought by these ,amendments are that : The time for filing of the appeals has been extended from 10 days to 20 days with retrospective effect and instead of one appeal from the order of the Land Reforms Officer to the Board of Revenue, two appeals have now been provided, one from the order of the Land Reforms Officer to the Commissioner, Sibi Division and a further appeal to the Board of Revenue from the order of the Commissioner, Sibi Division hi appeal. It was further provided by amending notification dated 13-9-1975, that all appeals pending before the Board of Revenue at the commencement of this amendment shall be transferred to the Commissioner, Sibi Division. Under rule 12(3) the aforesaid appeals filed by respondent No. 1 and respondents Nos. 4 to 63 have been filed before the Board of Revenue, have now been transferred to Commis sioner, Sibi Division who has fixed the hearing of the said appeals on 20-9-1975.

7. We have heard Mr. Khalid M. Ishaque, Advocate, for the petitioners and Mirza Mohammed Ahmed, Advocate-General, Baluchistan for the respondents, at some stages assisted by Mr. Irshad Mohammad Khan, O. S. D. at length, Learned counsel for the petitioners submitted that both the appeals filed by the Collector of Kachhi and individual respondents Nos 4 to 63, and other persons if any concerning the present petitions, before the Board of Revenue, are incompetent and void. That Rule 12 of the Land Reforms (Baluchistan Pat Feeder Canal) Rules, 1972 as amended by the notifications dated 14-5-1975 and 13-9-1975, is ultra vires of M. L. R. 117 and as such is liable to be declared as void and that by paragraph 15 of M. L. R. 117, power had been given to the Government to make rules but no power has been given under M. L. R. 117 to the Government to make any provision for an appeal against the order passed by the Land Reforms Officer and, as such, the said rule as well as the two appeals of Collector, Kachhi and the respondents Nos. 4 to 63 are incompetent and void and that by para. 15(2)(e), power has been given to the Government to make rules providing for matters relating to or connected with the presentation, hearing or determination of applications and representations for the reconsideration and review of orders made under the aforesaid Regulation. The said pro vision under M. L R. 117 does not contain, according to the counsel, any provision regarding appeals which clearly shows that the Legislature did not intend to make provision for appeals. It was also argued that as both Martial Law Regulations 117 and 115 relate to the provision about Land Reforms and Martial Law Regulation 115 was made on 11-3-1972 and Martial Law Regulation 117 was made on 13-3-1972 and by paragraph 6 of M. L. R. 115, a specific power has been given to the Land Commission to make rules "regarding matters relating to or connected with the presentation, hearing and determination of appeals from an application for the revision and review or orders made under the said regulations." The same authority making M. L. R 117 two days later intentionally omits the word 'appeal' in paragraph 15 of M. L. R.

117. This according to the counsel further confirms the petitioner's submission that M. L. R. 117 does not give the Government any power to frame rules providing for appeals against orders passed under M. L. R

117. To supplement his arguments learned counsel drew comparison with previous M. L. R. 64 wherein provision regarding appeals was specifically granted, to the Government to make rules relating to appeals. Para. No. 6 of M. L. R. 64 reads as follows:- "Power to make rules.--The Commission may with the previous sanction of Government, make rules for carrying out the purposes of this regulation, including rules on matters relating to or connected with the presentation, hearing and determination of appeals from, and application for the revision and review of, orders made under this Regulation." It was submitted that the legislative authorities are deemed to know the existing state of law. This shows that where the Legislature intend to grant power to the Government to make rules providing for appeals specific powers are given in the statute itself, but where the Legislature did not intend to grant any such power, the provision about appeal is deleted from the provision in the statute relating to rules, and that the right of appeal has to be conferred specifically by a law and without a specific confirment of such right no appeal lies. It was submitted that in the instant case, there being no specific provision in the statute and the provision regarding framing of rules not containing any specific provision for making rules relating to matters in connection with appeals, both the appeals, therefore, are incompetent and rule 12, itself, is ultra vires of M. L. R. 117.

8. The next question with regard to limitation of appeal was raised and it was submitted that in any case both the appeals are time-barred and could not be entertained because in rule 12(3), before its amendment, by amendment notification dated 14-5-1975 an appeal had to be presented within 10 days from the date of the order appealed against. But in the present case as the order of the Land Reforms Officer was announced in the presence of the parties on 23-2-1974, both the appeals having been filed after the expiry of the period of the limitation therefore, are time-barred. Even so the petitioners acquired valuable rights on the failure of the respondents to file appeals within the time provided by the rules. The respondent No. 3 has purported to amend the rules by extending, with retrospective effect, the period for filing the appeals from 10 days to 20 days. This action has been taken with the intention to bring the appeals of the respondents within time, and this amendment with retrospective effect by notification is, incompetent, without jurisdiction, illegal and void. This submission of the learned counsel should stand as such, because Mirza Mohammad Ahmed, Advocate-General, Baluchistan conceded that the provision under the rules which gives retrospec tive effect of filing appeals, was admittedly beyond their powers. It has now been well settled by this Court and the Supreme Court that rule-making authority has no powers to extend the rules with retrospective effect unless and until such powers is conferred by the statute itself, but such a provision is lacking here, therefore, learned Advocate-General had no option but to concede that rule-making authority had no power to make rule with retrospec tive effect.

9. The power to file appeal was challenged on another ground as well that is the appeal of Collector Kachhi is incompetent under the rule 12(2) because it gives a right to file appeal only to a 'person' to the Board of Revenue, but Collector of Kachhi cannot be deemed to be included in the term 'person' used in rule 12 of the Land Reforms (Baluchistan Pat Feeder Canal) Rules, 1972, and lastly prayer was made to declare the rule 12 of the Land Reforms (Baluchistan Pat Feeder Canal) Rules, 1972, as amended by notification dated 14-5-75, and 13-9-75, as ultra vices of M. L. R. 117 and void and declare the pending appeals filed by respondent No. 1 and other persons under rule 12 against orders of the Land Reforms Officer or before the Board of Revenue or before the Commissioner, Sibi Division, to be declared as incompetent, void and of no legal effect.

10. The question to be decided before us, therefore, is whether Rule 12 of Land Reforms (Baluchistan Pat Feeder Canal) Rules, 1972, is, ultra vires to section 15 of M. L. R. 117, power to make rules. Section 15 of M. L. R. 117 and section 12 of Land Reforms (Baluchistan Pat Feeder Canal) Rules, 1972 are given respectively as under:- "Power to make rules.-(1) The Government may make rules for the purpose of carrying into effect the provisions of this Regulation. (2) In particular and without prejudice to the generality of the foregoing powers, such rules may provide for- (a) the determination of the price of land granted under this Regulation or referred to in sub-paragraph (2) of paragraph 5; (b) the mode of recovery of such prices; (c) the mode of ejectment of defaulters; (d) delegation of powers under this Regulation ; (e) matters relating to or connected with the presentation, hearing or determination of applications and representations for the reconsidera tion and review of orders made under this Regulation. (f ) the conditions on which subsistence grants for life may be made under this Regulation; (g) the manner and form of submission of applications under this Regulation." "Rule 12.-(1) No appeal shall lie against the order of the Board of Revenue passed under para. 5(3) of the Regulation and the order so passed shall be final. (2) Any person aggrieved by an order passed by the Deputy Commis sioner under para. (7) of the Regulation may file an appeal to the Board of Revenue. (3) An appeal shall be presented within 10 days from the date of the order appealed against. (4) The order passed in appeal shall be final." Mr. Khalid M. Ishaque in this regard relied on Hussain Bakhsh v. Settlement Commissioner, Rawalpindi and others (PLD1970SC1). This was a case where the question of jurisdiction of the High Court to review its order in exercise of powers vested in it under Article 98 of the then Constitution, 1962, came into consideration where it was held "a proceeding under Article 98 of the Constitution concerning a civil matter being a civil proceeding relating to the High Court's original civil jurisdiction and section 114, C. P. C conferring power to review not having been made inapplicable to the High Court in the exercise of its original civil jurisdiction, the power to review an order made by the High Court in its writ jurisdiction will be available to it under the said section 114". Learned counsel relied on the passage, where it was held that "the right to claim review of any decision of a Court of Law, like the right to, appeal, is a substantive right and not a mere matter of procedure. An appeal as observed by Baranwell,, L. J., in the case of Sandback Charity Trustee v. North Staffordshire Railway Co., "does not exist in the nature of things; a right to appeal from any decision of any Tribunal must be given by express enactment".

11. For the proper appreciation of the contention raised by the learned counsel for the petitioners it is necessary to give the requisite provision with regard to power to make rules in Martial Law Regulations 64, 115 and 117. as they are in pert materia. In M. L. R. 64, the rule-making powers are provided under section 6 which are as under:- "Power to make rules.-The Commission may, with the previous sanction of Government, make rules for carrying out the purposes of this Regulation, including rules on matters relating to or connected with the presentation, hearing and determination of appeals from, and applications for the revision and review of, orders made under this Regulation." 'In M. L. R. 115 of 1972 rule-making powers are given under section 6, which :are as under :- "Power to make rules.-A Commission may make rules for carrying out the purposes of this Regulation, including rules on matters relating to or connected with the presentation, hearing and determination of appeals from, and applications for the revision and review of, orders made under this Regulation." In M. L. R. 117 of 1972 rule-making powers are under para. 15 which are as under :- "Power to make rules.-The Government may make rules for the purpose of carrying into effect the provisions of this Regulation. (2) In particular and without prejudice to the generality of the foregoing powers, such rules may provide for- "(a) the determination of the price of land granted under this Regulation or referred to in sub-paragraph (2) of paragraph 5; (b) the mode of recovery of such price ; (c) the mode of ejectment of defaulters; (d) delegation of powers under this Regulation; (e) matters relating to or connected with the presentation, hearing or determination of applications and representations for the reconsidera tion and review of orders made under this Regulation; (f ) the conditions on which subsistence grants for life may be made under this Regulation; (g) the manner and form of submission of applications under this Regulation."

12. Comparing the above three provisions in three different Regulations having on the same subject, it becomes clear that para. No. 6 of M. L. R. 64 is similar to para. No. 6 of M. L. R. 115 of 1972 and in both the paras. Rule making authority has been empowered to provide, apart from others, for appeals. However, section 15 of M. L. R. 117 is more exhaustive in nature compared to the above two Regulations and sub-clause (e) of the section appears to have been lifted from the above 2 paras. of M. L. Rs. 64 and

115. But instead of words "determination of appeals from, and applications for the revision and review of" it is provided "determination of applications and representations for the reconsideration and review of orders made." The word "revision" in this clause is not mentioned for the simple reason because under section 17 revisional powers specifically are given to the President or any person authorised by him.

13. The next question, therefore, for determination is whether the meaning of the words "determination of applications and representations for the reconsideration" can be extended and interpreted to give power to the rule-making authority as he did, to provide for right of appeal in the absence of specific mention of word 'appeal' in the section.

14. The argument of the learned Advocate-General that the word "application" is broad enough to include appeal as well, is further negatived by the definition given in Stroud's Judicial Dictionary, Fourth Edition at page 155 as: "The right of appeal is only by statute. It is not in itself a necessary part of the procedure in an action, but is the right of entering a superior Court and invoking its aid and interposition to redress the error of the Court below. It seems absurd to denominate this paramount right, part of the practice of the inferior tribunal" (per Westbury C. A. G. v. Sillem, 33 L J Ex. 209; 10 H. L. Cos. 704). It goes on to state that:- "a motion before a Judge in Court to discharge or vary an order made by him in chambers is not an appeal, but a re-hearing (per Cotton L J Re Giles, 43 Ch. D. 395; Boake v. Stevenson (1895) 1 C H 358). As to the word "application" Strouds at page 158 states that- "includes the hearing of the action as well as the interlocutory proceed ings (International Financial Society v. Moscow Gas Co., 7 Ch. D." It goes on to give example such as "application" for an advance (Irish Land Act, 1903), "application for review" (Workmen's Compensation Act, 1926). It is, therefore, abundantly clear that the words "application, representation" do not necessarily include and cannot be given wider interpretation so, as to include that word "appeal" which has a different procedure and consequences.

15. There is a little doubt that the Courts in certain circumstances where there are compelling reasons will interfere and have in the past inter fered with delegated authority and put a wider or narrower interpretation as required by particular circumstances. But this again is subject to well-known principles of interpretation. On the question of interpretation for delegated Legislature, Green M. R. said: "All that the Court can do is to see that the power which it is claimed to exercise is one which falls within the four corners of the powers given by the Legislature and to see that the powers are exercised in good faith". As to the ouster of the jurisdiction of the Courts, in Horton v. Owen ((1943) 2, All E R 560), it was held that "where a direction to perform certain work, which meant sending an unfit man .away from home, could not be objected to on the ground of unreasonableness of the direction were duly made. These cases illustrate the rule that a statutory order or regulation is. not invalid on account of unreasonableness, although a bye-law may be". What is the statutory value of a schedule Brett L. J. In Attorney-General v. Lamplorgh ((1878) 3 D. 214), has this to say :- "A schedule in an Act is a mere question of drafting, a mere question of words. The schedule is as much a part of the statute, and is as much, an enactment, as any other part, but if an enactment in a schedule- contradicts an earlier clause the clause prevails against the schedule."

16. As to the forms in a schedule it is stated that "forms prescribed by rules of Court are not construed as limiting or derogating from the rules or Act under which they are prescribed. They bear the same relation to rules as. schedules do to Acts".

17. He relied on Peer Muhammad Farid Jan v. Colonisation Officer Sukkur Barrage, Hyderabad and others (P L D 1965 S C 399 ), wherein it was held that "an appeal is the creature of a statute and must be confined within the limits imposed by the relevant statute. Under section 203 of the Act. an appeal from an order passed by a "Revenue Officer" under the Act, would lie to his immediate superior but the Revenue Officer who heard it, was clearly not in, that position above the Assistant Revenue Officer, since both of them were invested with powers of a Collector. The order of the Revenue Officer being itself a nullity, it was inapt to make it the "subject of an appeal, without canvassing the point of jurisdiction of the Officer hearing the first appeal" He relied on Muhammad Ishaq v. The State (P L D 1956 S C (Pak.) 256), wherein referring to A I R' 1927 P C 242 and Appeal Cases p. 369, it was held that "the right of appeal in this country being the creation of statute is a substantive right, and it can only be conferred or taken away retrospectively by express words or necessary implication". This judgment supports the contention of Mr. Khalid M. Ishaque on the question that no right of appeal can be given with retrospective effect in the absence of specific words in the statute and not in the rules and this position, as noted earlier, was conceded by learned Advocate-General Baluchistan. He next referred to Province of East Pakis tan v. Nur Ahmad and another (P L D 1964 S C 451), wherein it was held that "in the absence of any specific provision in the Basic Democracies Order or in the Rules framed thereunder to the effect that an aggrieved party should be given an, opportunity to show cause with regard to the action proposed to be taken against him, the Thana Council did not act illegally or beyond their power, therefore, cannot be entertained. Reading the rule in the above manner would be tantamount to enlarging its scope by depriving the aggrieved party' of the right of being heard which he has. Basic Democracies Order dues not deprive him of that right. The rule-making Authority, therefore, cannot: clothe itself with power which the statute itself does not give". In Hakimud din v. Government of West Pakistan and another (P L D 1960 Lah. 709), wherein, amongst others,. it was held that "omissions of the Legislature cannot be supplied by the rule making authority. The rule-making authority can only fill in the details when a framework is provided by the Legislature and cannot provide any part' of the framework itself." This was a case where the Legislature enjoined on, the occupiers the necessity of obtaining licences before working factories, the rule-making authority would be travelling outside the limits of its powers if it enjoined on the owners the duty of obtaining licences because the rule making authority would be amending the provisions of the Act which it does:, not possess the power to do". It was held in Azhar Ali Shah v. Nur' Muhammad and others (P L D 1960 Lah. 728), that "where the language used in a statute it plain and unambiguous the Courts have no power to extend the meaning of the words used in a statute because if that were allowed the Courts will be travelling beyond their function which is to interpret law, and will be launch ing on what is not their function, i.e. amending or making law. The Court .can hold that an expression used by the Legislature has a meaning different from that which the language used would indicate, but before such an interpretation is placed on the words used the intention of the law-maker must be clear on the point. The powers of Courts to gather the intention of the law-maker from extraneous matters can be exercised only if the language used by the law-maker is ambiguous. If, however, the language used is .clear, the Courts have to presume that the law-maker had expressed itself ,cogently and clearly by the words it had used in the law it has made. In Dad Muhammd Khan v. Bassa (P L D 1965 Lah. 77) wherein it was held that "rules framed under Act cannot override specific provisions of statute. Punjab Registration of Money Lenders Act read with Punjab Registration of Money-Lenders Rules, 1939". It was further held that "a Court is not entitled to read words into an Act of the Legislature unless a clear reason for it is to be found within the four-corners of the Act itself. Its duty is neither to add to, nor to take from, a statute anything unless there are good grounds for thinking that the Legislature intended something which it has failed precisely to express. Where no such inference is possible, words cannot be added in the provisions of the statute. It is not permissible to make additions or alterations or restore cassus-omissus in the statute without a suitable amendment. The Court .cannot remedy either of these defects". There is sufficient force in the arguments of the learned counsel for the petitioners and the principles laid down in the above judgments are very weighty.

18. To meet the arguments advanced by counsel for petitioners at some stage during the hearing that (Baluchistan Pat Feeder Canal) Rules, 1972, although made under the parent statute are not part of the same, therefore, they may not be treated as having statutory force, suffice to quote Craies on Statute Law, 7th Edition, p. 302, wherein following nomenclatures of statutory instruments are given:- "Nomenclature.-Statutory instruments are either (1) Orders in Council or (2) other instruments, which are variously described as orders, rules, regulations, schemes, warrants, licences, instruments, etc. No fixed system of nomenclature has been laid down, the description of instru ments generally following the description (if any) used by the enabling Act, which themselves are far from consistent in the matter of the terms used. "Regulations" is the term must popularly understood and the one favoured by the Committee on Ministers' powers, who suggested that "regulation" should be used for substantive law and "rule" for procedural law, while "order" should be reserved to describe the exercise of executive power or the taking of a judicial or quasi judicial decision." Therefore, it cannot be said that the rules in question have no statutory force. Same is the question before us. As to the validity of statutory instrument it is stated at page 311 that "a validity of statutory instrument is generally question of vires, i.e. whether or not the enabling power has been exceeded or otherwise wrongfully exercised". Maxwell on Interpretation of Statute, Edition, 1953 at page 379 referring to rules of procedure states that "enactments regulating the procedure in Courts seem usually to be imperative and not merely directory. If, for instance, an appeal from a decision be given with provisions requiring the fulfilment of certain conditions, such as giving :notice of appeal and entering into recognizances, or transmitting documents within a certain time, a strict compliance would be imperative and non compliance would be fatal to the appeal." But where no appeal, itself, is provided by the statute naturally the imperativeness or the directory nature of ,a subsequent provision of appeal in a rule simply disappears because that would be an excess of exercise of power by the rule-making authority, as it appears to us, in the present case. It is a cardinal canon of interpretation that the words and phrases in a statute, in the absence of to the contrary, be .given their ordinary meaning. Therefore, following the principle by no stretch of imagination, as argued by the other side, the words occurring in section 15(e) of the rules "hearing or determination of applications and ,representations for the reconsideration" can be interpreted so as to include the word "appeals" followed by necessary incidents, because determination .of applications and representations for reconsideration in ordinary sense may as well mean disposal of applications or representation for reconsideration without any notice to the other side but in cases of appeal notice has to be .given to the other side and the parties must be heard before it is disposed of. Therefore, in our opinion, by not providing the word appeal in section 14(e) by the Legislature was deliberate and conscious act on its part and it could not be said that it was a mere omission.

19. The earlier omission of providing for appeal in M. L. R. 117 would appear to be deliberate on the part of Legislature for another reason as well because the respondent "Land Reforms Authorities" at the same time are '9 vested with another section with power to finally confirm or reject grant of Government lands in the region under M. L. R. 117 and the rules, regardless of any decision on pending appeals. In other words, simultaneously two powers one about appeal and the other about confirmation are given to the Commissioner of the Division. Learned Advocate-General informed us that the cases of the present petitioners, and other persons are pending before Commissioner, Sibi Division for confirmation where the petitioners naturally will be heard before any decision is made. There is no dispute about the powers of confirmation of the authorities concerned, therefore, competency or ,otherwise of appeal for the present purposes would perhaps be only of an ,academic interest although it may give a guideline to the rule-making authorities.

20. Mirza Muhammad Ahmad, Advocate-General, Baluchistan has not cited any case-law and failed to pursuade us to think otherwise. All he submitted was that although in M. L. R. 117, there is no provision for appeal against the order of the Land Reforms Officer but this does not mean that this right has been expressly denied. He, however, failed to satisfy us that ,although these three Martial Law Regulations, 64, 115 and 117 are in p pari materia and the provision of appeal has been provided in former two Regulations but why not in M. L. R. 117 7 A general argument, however, :was advanced that the provision of appeal being a fundamental and basic right which has been provided under rule 12 is for the benefit of both the parties :and have been provided under paragraph 15 (1) of M. L. R. 117, therefore, it is intra vires with regulation, itself. He attempted to take shelter in the words. "in particular and without prejudice to the generality of the foregoing powers" occurring in section 15(1) so as to pursuade us that this by itself is wide ,enough to give power to the rule-making authority to provide provision for .appeal also. This argument, in our opinion, has no force because at the same time in section 15(e) elaborate procedure has been laid down for presentation, hearing or determination of applications and representations for the recon sideration, of the same by the relevant authorities but the word "appeal", I , significantly absent, therefore, no extended meaning can be given to the obvious omission. The situation perhaps would be different; had the Legisla ture held its hands with section 15(1). Because it is not known in history of legislation that wide powers are given to the rule-making authority without specifically mentioning the power of appeal. War Risk Insurance Ordinance (XXXII) of 1971 and rules thereunder, are an instance. Section 25 of the Ordinance gives the power to make rules as under:- "The Central Government may by notification and official Gazette make rules for carrying out the purposes of this Ordinance." There is no further elaboration as to how the rules are to be made. Simulta neously War Risk Insurance Rules, 1971 were promulgated in exercise of power under section 25 of the Ordinance which consists of 12 sections and three schedules. In fact it were sections 5, 2, 8 of the IIIrd Schedule which gives the right of appeal to an aggrieved person. Another instance is West Pakistan Finance Act IX of 1963, which gives powers under section 20 to the Government to make rules without mentioning any power for appeal therein but the rules thereunder "West Pakistan Capitalization Tax", 1964 made under section 20 provide for right of appeal, but such instances by itself do not substantially change the position before us.

21. The other grounds (h) and (3) in the petition that even the appeal was time-barred as they have been presented beyond the limitation of 10 days,. although not specifically denied in the counter-affidavit and that rule 12(a), gives a right only to a person to file an appeal and Collector of Kachhi does not come within the definition, need not be discussed because we have come to the conclusion that the rule-making power was not vested with power to provide the provision for appeal.

22. Learned Advocate-General, in the alternative argued that the rules in question are protected by Article 268 of the Constitution (1973) being exist ing laws and lastly that the jurisdiction of this Court is barred by virtue of section 3 of M. L. R. 117 but these arguments have no force. Mere provision of section that the Court has no jurisdiction does not divest this Court from its inherent power to go into that question whether a particular rule has been made within the four-corners of the statute itself and this has been the persistent view of this Court as well as the Supreme Court.

23. For the reasons given above we accept these petitions and declare that. the rule 12 of the Land Reforms (Baluchistan Pat Feeder Canal) 1972 is ultra vires of M. L. R. 117 and, therefore, void and all appeals filed in pursuance of rule 12 of the Land Reforms (Baluchistan Pat Feeder Canal) are incompetent. and rule 12 must be struck down from statute book as being ultra vires, M. L. R.

117. As fairly important legal questions of law were involved, we have the parties to bear their own costs. S. A. H. Petitions accepted.