1989 PLP 4286 (MLD)

AJMAL MIAN, CJ--The petitioners by this petition have prayed for, the following reliefs: "It is, therefore, prayed that this Hon'ble Court may be pleased to:- (i) declare that the impugned notice dated 14-3-1979 of Respondent No. 1 and all proceedings taken and orders passed by Respondent No: 1 on the basis of the said Notice against the petitioner arc without lawful authority and of no legal effect and this Hon'ble Court maybe pleased to quash the same; (ii) restrain the Respondents; their subordinates and employees; from taking any proceedings or action against the petitioner or their lands in pursuance of the impugned notice dated 14-3-1979; (iii) grant costs of this petition; and (iv) grant any other relief/reliefs that this Hon'ble Court may deem fit and proper in circumstances of the case."

2. The brief facts leading to the filing of the above petition are that Shah Nawaz Unar, the father of petitioners 1 to 7 and the husband of petitioner No.8 filed declaration (hereinafter referred to as the deceased declarant), under MLR 115 (hereinafter referred to as the MLR), in which he had shown as many as 23 alienations of agricultural land. The declaration was scrutinised by the Land Commissioner Sind, who by his order dated 12-8-1972 accepted the above alienations, except one in favour of the grand son on the ground that he was not a specified person in terms of para 7 of the MLR. Thereupon, the deceased declarant filed a review application averring therein that even if the agricultural land which was gifted to the grand son was to be included in his personal holding that could not exceed the ceiling provided under the MLR. It appears that the above review application was disposed of by the Land Commissioner Sin d by his order dated 23-9-1972 with the observations to the above effect. After that the Chairman, Federal Land Commission in purported exercise of the suo moto revisional powers under para. 29 of the MLR issued a notice to the deceased declarant for appearance on 25-2-1976. The above notice was challenged by the deceased declarant through Constitutional Petition No. D-138 of 1976. While the above petition was pending Land Reforms Ordinance 1977 was promulgated on 5-11-1977 which was replaced by Act 11 of 1977 i.e. Land Reforms Act, 1977, hereinafter referred to as the Act, with effect from 5-2-1977. Section 25 of the Act provides as follows: "

25. Abatement of pending proceedings.--All proceedings pending before the Federal Land Commission shall, on commencement of this Act, stand abated unless the Federal Government directs otherwise in a case or class of cases. In view of the above quoted section the deceased declarant's Advocate in the above petition made a statement on 9-5-1978 that the petition had become infructuous and the proceedings before the Federal Land Commission stand abated in terms of above quoted section

25. It appears that the Government of Pakistan in exercise of powers conferred by section 25 of the Act issued Notification No.

11. J977-LR 1-78 dated 23-9-1978 directing that the proceedings in cases under paragraph 29 of the MLR pending before the Federal Land Commission on the commencement of the Act shall not stand abated and further delegating the power to the Chairman of the Federal Land Commission under para 29 of the MLR. The petitioner received a notice dated 14-3-1979 in purported exercise of suo moto powers under para 29 of the MLR, which has been impugned by the above petition.

3. In support of the above petition, Mr. Mushtaq Memon, learned counsel for the petitioners has vehemently urged that the impugned Notification purporting to nullify the effect of section 25 of the Act is ultra vires of section 25 of the Act inasmuch as the Federal Government has not specified a case or class of cases in terms of the above section. In furtherance of his above submission he has relied upon the following passages from Craies on Statute Law, Sixth Edition by S.G.G.Edgar at pages 323 and 327, which read as follows: "A be-law unlike a statute may be treated by the Courts as ultra vires and unenforceable. That is to say, if a power exists by statute, charter, or custom to make by-laws, that power must be exercised strictly in accordance with the provisions of the statute, charter or custom which confers the power." "(c) Inconsistency with the statute under which they are made. By-laws made in pursuance of a statutory power must not go beyond, nor be repugnant to, the enactment under which they are made." He has also referred to the following cases: (i) Zaibtun Textile Mills Ltd., Karachi and others v. Central Board of Revenue and others (PLD 1971 Karachi 33) particularly on the observations in the opinion given by Ghulam Safdar Shah J, with whom on merits Noorul Arfin, J. had agreed to, to the effect that "from all these observations the principles which can be deduced are that when the Court is called upon to determine the vires of delegated legislation, enacted in implementation of the dictate of the Constitution, it should be guided more by the consideration to ensure that the intention of the Legislature is not frustrated, that the absence of standards or guidelines in a statute would not necessarily render the statute unconstitutional while the conferment of uncontrolled and arbitrary power on the delegate would render the statute void." (ii) Cannon Products Ltd. v. Income-Tax Officer, Companies Circle, Karachi and 2 others (PLD 1985 Karachi 572) particularly on paras 13 (i) and 13 (iv).

4. We are inclined to hold that under above quoted section 25 the Federal Government had the power to direct that a case or class of cases would not stand abated but it could not have issued the impugned Notification directing that all the cases which were pending before the Federal Land Commission before the enactment of the Act shall not stand abated. The impugned notification in fact purports to nullify the effect of section 25 of the Act as a whole and, therefore, it is ultra vires of the powers of the Federal Government. In this view of the matter, the impugned notice issued in pursuance of the above impugned Notification also cannot be sustained. .

5. We would, therefore, declare the impugned notice as being without lawful authority and of no legal effect. The petition stands disposed of in the above terms with no order as to costs. H.B.T:/S-392/K. Petition allowed.