P L D 1962 (W (PLP)

J. ORTCHESON, J.

The facts of this case as alleged by the plaintiffs are that Faqir, plaintiff No. 1, was the exclusive owner of 281 kanals of land, forming Khasra No. 1385, within the limits of village Jaba, Tahsil Mansehra, and that, together with his brother Muhammad Ji, plaintiff No. 2, learned 167 kanals 6 marlas , comprised in Khasras Nos. 582, 1493, 1494, 1496 and 1497 in the same village, the two holding equal shares. The total land held between them thus amounted to 448 kanals 6 marlas. A portion of the joint land was mortgaged with one Muhammad Ibrahim.

2. By registered deed of exchange (Exh. P. L.) dated the 2nd of February 1952 the plaintiff exchanged 1/3rd of the above land, with a proportionte share in the shamilat, for the 1/5th share owned by Qazi Abdul Kafil defendant in 164 kanals 13 marlas of land (Khasras Nos. 670, 675, 330-331, 613, 615, 312 and 313), situated in village Ahal In the same Tahsil. Three mutations were attested in respect of the above transaction, namely, Nos. 238 and 239 on the 10th of July 1952 in favour of the defendant and No 2611 on the 24th of April 1954, in favour of the plaintiffs.

3. On the 15th of November 1954 the plaintiffs sued in the Court of the Sub-Judge, Mansehra, for a declaration to the effect that the deed Exh. P. L. and the exchange mutations Nos. 238 and 239 were contrary to law and consequently liable to cancel lation, and that they were entitled to the sale proceeds of the trees standing on the land given to them by the defendant under the exchange.

4. The suit was contested, the nature of the defendant's pleas being sufficiently shown by the issues framed, which run- (1) Whether plaintiffs are estopped by their conduct from bringing this suit ? (2) Whether plaintiffs have got a cause of action ? (3) Whether the suit is not competent in its present form ? (4) Whether the suit is bad for misjoinder of causes of action ? (5) Whether the suit has not been properly stamped ? (6) Whether the suit is within time ? (7) Whether the transaction in dispute is against law, and liable to cancellation ? (8) Whether plaintiffs are in possession of the land given in exchange to the defendant as owners. If so, its effect ? (9) Whether the exchange under dispute has been cancelled by the parties ? (10) Relief.

5. The learned trial Court repelled the plaintiffs' contention that the transaction in dispute offended against the provisions of rule 22 of the Rules framed under the North-West Frontier Province Act VI of 1937 and held that the transaction of exchange was entered into freely and voluntarily by the parties. Issue No. 1 was consequently decided in favour of the defendant, and Issues Nos. 8 and 9 against the plaintiffs, whose suit was dismissed, the parties being, however, left to bear their own costs.

6. Against the above order, dated the 16th of March 1956, of the learned Senior Sub-Judge, Hazara, to whose Court the suit had been transferred, the plaintiffs filed an appeal in the Court of the learned District Judge who, by his order dated the 3rd of September 1956, disagreed with the finding of the trial Court regarding the validity of the transaction. The appeal was accordingly decreed, but with no order as to costs throughout.

7. Against the above order the defendant came up to this Court in further appeal under section 31 of the North-West Frontier Province Regulation No. I of 1931.

8. The main question for decision is whether rule 22 of the Rules framed under the North-West Frontier Province Act VI of 1937 (hereinafter referred to as " the Act ") was validly framed. It runs- "

22. Miscellaneous :-The exchange of private land com prising a Guzara is prohibited, except with the special sanction of the Provincial Government." In the course of his judgment the learned District Judge referred to section 54 of the Act, which provides that all rules made under the Act shall be published In the Official Gazette, and on such publication shall have effect as if enacted in the Act itself, and went on to observe: " From the authorities quoted above it is abundantly clear that the statutory rules like the one made under the Hazara Forest Act for all intents and purposes are to be taken as a part of the Act itself. This being the position the validity or otherwise of the rules can be called into question only if the Act Itself is ultra vires of the Legislature. In other words whether the then N.-W. F. P. Legislature was competent to pass the Forest Act ?" (It may here be mentioned by way of clarification that N.-W. F. P. Act VI of 1937 is described as "an Act to consolidate and amend the law relating to Reserved Forests and Waste-lands in the Hazara District").

9. In arriving at his conclusion that when a statute contains a provision that the Rules framed under it are to have statutory force, Courts are precluded from challenging their validity, the learned District Judge appears to have relied on Emperor v. Abdul Hamid (A I R 1923 Pat, 1). In the course of his judgment in the above case Das, J., after drawing a distinction between rules, regulations and bye-laws made under a statute which provides that they shall have the same effect as if enacted therein and those made under a statute which contains no such provision, goes on to remark : "Now the distinction between the two is this that where the statute, under the authority of which the rules, regulations or bye-laws are promulgated, itself declares that they shall have the same effect as if enacted in the statute, the validity of the rules, regulations or bye-laws cannot be questioned in any Courts of law, nor can the Courts quash them or reject them on the ground that they are uncertain or unreason able." With the utmost respect, however, I find myself unable to accept the above observations as laying down the correct law on the subject. They are based on certain remarks of Lord Herschel] in the case Institute of Patent Agents v. Lockwood (1894 A C 347). The remarks in question are to the following effect : " My Lords, I have asked in vain for any explanation of the meaning of those words or any suggestion as to the effect to be given to them if, notwithstanding that provision, the rules are open to review and consideration by the Courts. The effect of an enactment is that it binds all subjects who are affected by it. They are bound to conform themselves to the provisions of the law so made. The effect of a statutory rule if validly made is precisely the same that every person must conform himself to its provisions and, if in such case a penalty be imposed, any person who does not comply with the pro visions whether of the enactment or the rule becomes equally subject to the penalty. But there is this difference between a rule and an enactment, that whereas apart from some such provi sion as we are considering, you may convass a rule and determine whether or not it was within the power of those who made it, you cannot convass in that way the provisions of an Act of Parliament." The words italicised are highly significant and appear to me to carry the clear implication that Courts have power to enquire into the validity of a rule. I am fortified In this conclusion bye the following passage from Maxwell's Interpretation of Statutes, 1953 Edition, at page 303 :- " Where Parliament has delegated its legislative function to a Minister of the Crown without retaining any specific control over the exercise of that function by the Minister (such as a condition that an order made by the Minister should be laid before Parliament and be subject to annulment by Parliament) the Court has the right and duty to decide whether the Minister has acted within the limits of his delegated power." In the present case the power to make rules having statutory effect is a legislative function delegated to the Provincial Government, and on the basis of the above authority, culled from Minister of Health v. R. Exp. Yafee (1931 A C 494), 1 hold this Court has power to enquire into their validity. It is also to be noted in this connection that section 53 (1) of the Act, which confers on the then Local Government (now the Provincial Government) to make rules, runs- " The Local Government may make rules to carry out the objects and purposes of this Act." At page 302 of the above cited work Maxwell observes: " Where, however, the statute conferring the power to " make bye-laws " enacts that any such laws consistent with the provisions of the statute and not repugnant to any other law in force shall have the force of law when confirmed by the Executive, it is doubtful whether a Court would not be pre cluded from questioning the reasonableness of such bye-laws or whether they are ultra vires, unless it be in some very extreme case." The above passage enshrines the general principle that bye-laws) or rules made under a statute must fulfil the two-fold condition of being consistent with the provisions of the statute under which they are framed and of not being repugnant to any other law In force.

10. Another well-known principle, referred to by Maxwell at page 81, is that the legislature must be presumed not to have intended to make any substantial alteration in the law beyond what it explicitly declares either in express terms or by clear C implication, or, in other words, beyond the immediate scope and object of the statute, and that in all general matters outside those limits the law remains undisturbed, it being in the last degree improbable that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness. In the present case the effect of the rule 22 of the Rules under consideration is to restrict the right of a land-owner to alienate his land. Such a restriction can only be justified if the Act itself confers, either expressly or by unmistakable implication, the right to impose it.

11. The only relevant provision of the Act is subsection (1) of section 12, which runs- " Subject to the rights and powers of the Government in respect of seigniorage and forest conservancy as defined in this Act or in rules made thereunder, and subject also to the claims of right-holders not being owners of the soil, all waste lands are the property, held jointly, or severally as the case may be, of the land-owners of the village in whose boundaries they are included ; and such land-owners are entitled to use free of charge for their own domestic and agricultural requirements any trees and forest-produce found in those waste-lands. But they shall have no right or power to sell any trees or brushwood growing in such lands except with the permission of the Deputy Commissioner or other officer authorised by the Government and under such conditions as the Deputy Commissioner may impose ; and all such sales shall be subject to payment to the Government of seigniorage fees as provided by section 27." On analysis, the above provision imposes only the following restrictions on the rights of holders of waste-lands :- (1) They shall be subject to the rights and powers of the Government in respect of seigniorage and forest conservancy and to the claims of right-holders not being owners of the soil. (2) They shall have no right or power to sell trees or brushwood growing in such lands except with the permission of, and subject to the conditions imposed by, the competent authority. (3) Such sales of brushwood shall be subject to payment of seigniorage-fees to the Government. None of these restrictions covers alienation of the land on which the trees stand, and it is clear that the effect of any such alienation is merely to substitute a new land-owner for the oks, the new owner being as much bound to obey the provisions of the section as was his predecessor-in-interest. Moreover, although clause (c) of subsection (2) of section 53 of the Act is, of course, merely illustrative and not exhaustive, it is not without significance that it provides only for the making of rules relating to the preserva tion, reproduction and disposal of trees, brushwood and timber E produced on waste-lands. Finally, it is not irrelevant to point out that whereas section 6 of the Act prohibits, with certain exceptions, the acquisition of a right of any description in or over a reserved forest, no such prohibition obtains in the case of waste lands, the fundamental difference between the two types of property being that whereas reserved forests are the property of Government, waste-lands vest in the land-owners of the village in whose boundaries they are included. If, therefore, it had been the intention of the legislature to prohibit exchange or any other form of alienation of waste-lands it is to be expected that that intention would have been expressed in clear and unmistakable terms. It is a fundamental principle of law that statutes which encroach on the right of the subject, whether as regards person or property, are to be strictly construed and that if any doubt exists as to their scope, they should be interpreted, if possible, so as to respect such rights.

12. For the above reasons I hold that rule 22 of the Rules goes beyond the scope of section 12 of the Act, and is consequently ultra vires.

13. The effect of the above finding is that the appeal must be remanded to the learned District Judge for decision of the issues on the questions of estoppel and of the alleged cancellation of the exchange deed. Costs of this appeal to abide the event. K. M. A. Case remanded.