P L D 1967 Karachi 618 (PLP)

A. S. Pirzada for Petitioners. Qazi Akhtar. A. A.‑G. for Respondents. Dates of hearing ; 9th, 13th and lath December 1966. NOORUL ARFIN, J.‑This petition under Article 98 of the Constitution has been brought to question the validity of the resumption of 331 acres 17 ghuntas of agricultural land situated in Deb Mangria, Taluka Tando Allahyar, District Hyderabad, under Martial Law Regulation No.

64. Before going into the facts of this case, it will be convenient to refer to the provisions of the Regulation and the notifications made thereunder which are material for this petition.

2. Martial Law Regulation No. 64 was promulgated on 7th February 1959, by the Chief Martial Law Administrator, to make provision for limits on individual holdings of agricultural lands and resumption of lands in excess of these limits. Para graph 4 of the Regulation constituted the West Pakistan Land Commission and clause (5) of this paragraph confers on the Commissioner power to make provision for any matter not provided for in the Regulation or if any difficulty arises in giving effect to the purposes of the Regulation. These provisions are required to be made by orders notified in the official Gazette, and it is laid down that an order so made "shall be deemed to form part of this Regulation and have effect accordingly". Clause (6) of the paragraph makes the decision of the Commission final on any dispute which may turn up in administering the Regulation. Paragraph 7 of the Regulation provides that " the transfer of any land, and the creation of any right or interest in or encumbrance on any land, made in any manner whatsoever on or after the 8th day of October 1958, by any person holding immediately before that date an area of more than 500 acres of irrigated land or an area equivalent to more than 36,00 produce index units, whichever shall be greater, shall be, and shall be deemed always to have been void, and the land so transferred or encumbered shall be deemed to have been owned or possessed, as the case may be, by the person by whom it was owned or possessed immediately before that date". The decision of the Commission on the question whether any transfer is or is not void under this paragraph is declared to be final. Paragraph 8 prescribes that no person stall at any time own or in any capacity possess land in excess of five hundred acres of irrigated land or one thousand acres of unirrigated land, or irrigated and unirrigated land the aggregate area of which exceeds five hundred acres of irrigated land, one acre of irrigated land being reckoned as equivalent to two acres of unirrigated land. Under paragraph 16, land in excess of the permissible limits is made resumable by, and to vest in, the Government free of any encumbrance or charge. Paragraph 27 creates a bar on the jurisdiction of Courts to question the Regula tion or any Rules or Orders made thereunder, and it is further laid down that no Court shall have jurisdiction in respect of matters which the Commission or an officer acting under the Authority of the Commission is empowered to determine.

3. On 5‑9‑59, the Land Commission issued an order under paragraph 5(4) of the Regulation to the effect that the term "existing owner" used in the Regulation, shall be deemed to mean "a person entered as owner in the revenue records on or before 7th February 1959, and the person who had become entitled to any land on account of inheritance before the said date although not entered as such in the revenue records". Another order was made by the Commission on 26‑3‑1959, providing that any alienation of land made before 8th October 1958, through a registered deed shall be considered valid irrespective of the fact whether or not any mutation has been sanctioned in this behalf, but that any alienation made otherwise than through a registered deed between 8th October 1957, and 8th October 1958, shall be considered valid only if it is so declared by the prescribed authority.

4. The course which the present case has followed may now be briefly stated. The land in dispute was purchased by one Noor Nabi from the Lloyd Barrage authorities on 31‑7‑1953 at Rs. 315 per acre, 25 per cent. of the price having already been paid in advance on 9th and 12th May 1953, and the balance being payable in ten annual instalments of Rs. 10,891 each. Noor Nabi sold his interest in the land to Pir Ghulam Rasool Shah (Petitioner No. 1) in November 1954. This transfer was effected on statements made on 8‑11‑1954 by Noor Nabi and Pir Ghulam Rasool Shah before the Assistant Revenue Officer, Lloyd Barrage, whose order sanctioning this transfer is dated 12‑11‑1954. Pir Ghulam Rasool Shah it is stated, remained in possession of the land up to 19‑12‑1958 by which date he paid five annual instalments.

5. On 19‑12‑1958, after the declaration of Martial Law in the country, Pir Ghulam Rasool Shah made an application to the Revenue Officer, Lloyd Barrage for permission to transfer leis interest in the land to Ghulam Nabi Shah, the petitioner No.

2. This permission was granted by order made on 12‑1-1959. On the same date, the name of Ghulam Nabi Shah was mutated as owner of this land in the record of rights. But after the promulgation of Martial, Law Regulation No. 64, the Deputy Land Commissioner held this transfer in favour of Ghulam Nabi Shah as void under paragraph 7. of the Regulation, and treated the land as still belonging to Pit Ghulam Rasul Shah, who was already holding 2,255 acres of agricultural land as owner and 3,066 acres and 29 ghuntas as lessee in possession The holding of this petitioner being in excess of the permissible limits, the disputed land was included in the land resumable by, and vesting in, the Government.

6. An application was now made to the Land Commissioner at Hyderabad for confirmation of the transfer of the disputed land by Ghulam Rasool Shah to Ghulam Nabi Shah. By order dated 24‑6‑1959, the Land Commissioner refused to accord this permission. The revision application against this order was filed otr28‑6‑1960, but it was dismissed as barred by limitation by the Chief Land Commissioner; who, however, decided to exercise his sun Motu revisional powers, which he did by order dated 26‑9‑1964. in this order the resumption of the land was upheld, but it was directed that the petitioner No. 1 should receive compensation for so much of the land‑,as corresponds to the price already paid by him by instalments. Against all these orders the petitioners have now come to this Court under Article 98 of the Constitution.

7. The main discussion before us centered on the question as to the effect of the Land Commission's order made on 5‑9‑1959 providing that the terms "existing owner" stall be deemed to mean any person entered as owner in the revenue records on or before the 7th February 1959. The contention of Mr. A. S. Pirzada, the learned counsel for the petitioners, was that this order having been made under-clause (5) of paragraph 4 of the Regulation, it should be deemed to form part of the Regulation and to have effect accordingly, and being later in date, it will prevail over the earlier provisions of the Regulation, including paragraph 7 which declare void all alienation of lands after the 8th of October, 1958, by persons whose holdings immediately before this date were in excess of the permissible limits under paragraph

8. Thus, though the Regulation itself declares certain alienations, made after 8th October 1958, to be void, the order of the Land‑Commission made on 5‑9‑1959, according to this argument, has the effect of rendering these alienations valid, provided the transferees' names were entered as owners in the revenue records on or before 7th February 1959, and to this extent, it was contended, the provisions of paragraph 7 of the Regulation have been modified by the order of the Land Com mission. In this view of the matter, the transfer of the disputed land, which was made on 19‑12‑1958, and under which Ghulam Nabi Shah's name was mutated in the records of rights on 12‑1‑1959 should be treated as valid and as not affected by paragraph 7 of the Regulation.

8. Now the question is, whether if there is conflict between the provisions of Regulation 64 and an order of the Land Commission under paragraph 4 (5) of the Regulation, the provisions of the Regulation will give way to the order. In our opinion, the words "such order shall be deemed to form part of this Regulation and have effect accordingly" in paragraph 4 (5) do not have the effect of rendering such an order as the main enactment, so as to make it prevail over the provisions of the Regulation itself. If there is inconsistency between the Regula tion, which is the main enactment, and the rules thereunder which rules are to be deemed to be part of the main enactment itself, then the two provisions of the enactment and the rules should be ‑reconciled as best as they can: But if the conflict is incapable of resolution, the rule which should apply is, that the principal enactment should be treated as the main provision and the Order or Rules made under the enactment, as subordinate provisions. This rule has been explained by Herschell L. C. in the case of The Institute of Patent Agents v. Lockwood ((1894) A C 374) as follows: "No doubt there‑might be some conflict between a rule and a provision of the Act. Well there is a conflict sometimes between two sections to be found in the same Act. You have to try and reconcile them as best you may. If you cannot, you have to determine which is the leading provision and which the subordinate provision, and which must give way to the other. That would be so with regard to the enactment, and with regard to rules which are treated to be as if within the enactment. In that case, probably the enactment itself would be treated as the governing consideration and the rule as sub‑ordinate to it." These observations were noted with approval by Viscount Dunedin in the case of Minister of Health v. The King, known as Yaffess case ((1931) A C 494). Thus, if there is any conflict between paragraph 7 of Martial Law Regulation No. 64, and the order made by the Commission on 5th September 1959, under paragraph 4(5) of the Regulation, it is the order which should give way to the Regulation, so that this order cannot have the effect of modifying or altering the provision of the Regulation itself.

9. But in our opinion, there is no conflict between these two provisions. The Regulation gives certain exemptions and facilities under paragraphs 9 and 11 to "existing owners". One facility is that an existing owner may retain out of his holding such additional area as would bring the total area retained by him to the equivalent of 36,000 produce index units. Another facility is, that an existing owner, whose holding is greater than 36,000 produce index units, may transfer to his heirs an area equivalent to 18,000 produce index units. Similarly, the existing owner is also enabled to transfer by way of gift a maximum area 6,000 produce index units to his female dependents. 'But the term "existing owner" was not defined in the Regulation, and it was for the reason that the Commission made the order of 5th September 1959, declaring the "existing owner" to mean persons who were entered as owners in the revenue record on 7th February 1959, and also persons who had become entitled to land on account of inheritance before this date, but whose names were not entered into the revenue records. It was not intended that this order should in any way modify or alter the provisions of the Regulation.

10. The next contention of Mr. Pirzada was that Pir Ghulam Rasool Shah could not be treated as owner of the disputed land, as he held this land under a transaction which was merely an agreement of sale. It was suggested that the sale of this land was to be completed only on payment of all the instalments of the price, and till then any transfer of land could only be treated as transfer of the rights under the agreement. It was, therefore, contended that Ghulam Nabi Shah was merely a transferee of the rights under the agree ment of sale, and not of the land itself, and therefore his case was not covered by paragraph 7 of the Regulation. We are unable to inspect this argument which, in our opinion, is misconceived. The admitted position is, that the land in question was in the possession of, and under cultivation by, Pir Ghulam Rasool Shah on 8th October 1958. Under paragraph 8 of the Regulation, the land owned by a person, as also lands of which be holds possession in any capacity, are included in the maximum holding prescribed by the Regulation. Pir Ghulam Rasool Shah was the purchaser in possession of the disputed land. He transferred not only his rights under the agreement of sale, but also the possession of the land, to Ghulam Nabi Shah. This would amount to transfer and alienation of land within the meaning of paragraph 7 of the Regulation and would, therefore, be void.

11. The learned counsel for the petitioner next referred to the question of the quantum of compensation directed to be paid to Pir Ghulam Rasul Shah by the Chief Land Commissioner. The compensation in this case was determined in accordance with‑ the decision of the Land Commission made on 14th May 1961 under which, in the case of lands the price of which was payable by instalments, it was directed that the owner should not be entitled to the refund of the instalments paid by him in respect of the resumed land, but he should be given compensation for so much area of the land as corresponds to the price paid by him, and that the remaining area should be resumed without compensation. This decision was made under paragraphs 4 (6) of the Regulation, which provides that dispute which arise in carrying into effect the provisions of the Regulation shall be referred to the Commission, whose decision thereon shall be final. The decision of the Commission on the quantum of compensation cannot, therefore, be questioned in the present proceedings.

12. For these reasons we dismiss the petition with costs. K. B. A. Petition dismissed.