P L D 1966 Supreme Court 229 (PLP)

| | | Chelaram Nathumal | _________ | | | | Rupcharid Paroomal | | _________________________________ | | | Vishindas Radhomal Jhamandas | Rattanchand | Mahesh. (Persons whose names are *underlined are dead.) On the record of the writ petitions filed in the High Court by certain members of the family, there were placed extracts from the revenue records of a number of villages, and although as remarked in one of the judgments delivered in the High Court, these records only relate to a few hundred acres as against a total of 18,000 acres which it is claimed are entered in the revenue records in the name of this Joint Hindu Family, yet it is possible by reference to these records to ascertain certain facts enabling determination of the status and membership of the families involved. Lalchand, son of Khanchand died in or about July 1936, and in the revenue records, there is found a statement made by two Hindu zamindars as to the succession, dated the 15th September 1936, which appears to cover the membership of the Joint Hindu Family Pahloomal Motiram at that date. It was recorded that he had died leaving no son or daughter or brother or sister and that his parents and grand-parents had pre deceased him. His heirs were his cousins. Wasdev (i.e. Basomal), Rupchand, Jhamandas; Radhomal and Vishindas. All these names appear in the pedigree table above. The name of his widow was mentioned. It was said that during his lifetime Lalchand, was joint "with his above-mentioned cousins in kitchen and business dealings etc. and they were members of a joint family". Lalchand was "in charge of Zamindari affairs" while his cousins attended to a cotton ginning factory. After Lalchand's death "Seth Jhamandas Ramchand is the principal member of the joint family and the other members including wife of the deceased are joining him in food and drink". As to the lands, the following statement was made: "Therefore the Khata of the deceased's land will be entered in the name of Seth Jhamandas for the joint family. The deceased's lands are situated in Tapo Mirpurkhas, Khan,Mirpur Purani, Veesri, Kathri and Jhirbi. Its possession and enjoyment is under control of Seth Jhamandas, the principal member of the joint family and such (an) entry is made." By order of the Mukhtiarkar, the khatas of the land entered in the name of the deceased Lalchand were mutated in the name of Jhamandas, son of Ramchand "for the joint family". Reading this report and the Mukhtiarkar's order together, there seems no room for doubt that the mutation of names was being made in relation to the entire landed estate of the Joint Hindu Family Pahloomal Motiram, and it appears equally clearly that up to the time of his death, Lalchand had been managing this landed estate, and that the effect of the mutation was to bring into the revenue records, the name of his cousin Jhamandas as the person who was to be in control of the Joint Hindu Family lands. The mutation was strictly in accordance with the revenue rule, in the Village Revenue Accounts Manual for Sind, reading as under:- "Rule 8-In the case of a Joint Hindu Family the name of the principal member of the family who manages the estate should be shown as Manager in column II." For reasons of brevity and following the practice, the words entered in the revenue records were "Gadial Kutumb Tor", which in Sindhi mean, "for the whole family" or "for the joint family". At the time when Lalchand died, his uncle Rewachand was already dead. His death occurred in 1932, and among the documents from the revenue records, there are three entries of June 1932 showing that upon the death of Rewachand, who was described in these entries as having whole-rupee proprietorship, lands in three villages Nos. 111, 114 and 115 were mutated in the name of Rupchand Chelaram, his elder grandson, "for the joint family." This indicates that both of Rewachand's sons, namely, Chelaram and Nathumal had already died, and in respect of Rewachand's separate, i.e., whole-rupee property, .his heirs were Rupchand and Paroomal, both of whom are still alive. The question arises why was Paroomal not mentioned as one of the heirs of Lalchand when in 1936, the mutation in respect of the Joint Hindu Family Pahloomal Motiram was effected? Since he was alive, the only reason that can be conceived for this omission is that he had separated from the Joint Hindu Family Pahloomal Motiram. Some support for this is provided by the discovery in the revenue records of three mutations of the year 1949 whereby at the instance of Paroomal, his whole-rupee land in three villages viz., 111, 114 and 116 was entered in. the name of the "joint family of Seth Jhamandas", that is to say he Joint Hindu Family Pahloomal Motiram. The indication is that qua the Joint Hindu Family Pahloomal Motiram of which he was a natural-born member, Paroomal had become separated on a date prior to 1936. Under the Hindu Law, reunion of a separated member of a Joint Hindu Family is possible and thereby status as a member of the Joint Hindu Family is regained, but it is not possible to say on the mere evidence of the three mutations of 1949, a date after the Partition, that there was in fact a reunion between Paroomal and the other members of the Joint Hindu Family Pahloomal Motiram. Therefore, on the available evidence from the revenue records, it would appear that qua the Joint Family Pahloomal Motiram,. Paroomal had ceased to be a member or co-parcencer prior to 1936. But, as Paroomal has sons, it is necessary to point out that, even assuming he was not re-united with the descendants of his great grandfather, Pahloomal, yet his sons and their sons have co-parcenary interest in all lands that he separately owns which he received out of the estate of his grandfather Rewachand, as well as out of the estate of the Joint Hindu Family Pahloomal Motiram. The lands which on the death of Rewachand. were mutated in the name of his grandson Rupchand pertain to a separate Joint Hindu Family, which may be described as Joint Hindu Family Rewachand Pahloomal. The lands standing in the name of Jhamandas "Gadial Kutumb Tor" may be safely held to be lands pertaining to the Joint Hindu Family Pahloomal Motiram. In any appraisement of the co parcenary interests in respect of the lands in the case, these factors would need to be borne in mind. Again, under the pure Hindu law, no female can be a co parcener. A number of applications by women were included among the revision petitions filed before the Land Commission authorities. And of these, it may be said at once that whatever the rights of these women might be on any other basis, they certainly could not claim any right as co-parceners. Although, by provision of statute, a Joint Hindu Family is entitled to sue in its own name, and under the Income-tax Act, is included within the definition of a "person", yet it would seem difficult to deny that in the concept of Hindu Law, a Joint Hindu Family is not a corporate personality. By being a member of a Joint Hindu Family, a person does not lose his identity. Each co-parcener has a joint interest in, as well as joint possession, of the co-parcenary property. It is true that by the addition or elimination of co-parceners, the identity, if that term may be used without any accent of integration, of the Joint Hindu Family remains unaffected. Succession to co-parcenary property, within the co-parcenary, is by survivorship, just as acquisition of the full rights of a co-parcener accompanies birth into the family. The rights and liabilities in respect of the co-parcenary property are well defined. But, nevertheless, the co-parceners do not, by virtue of participation in the co-parcenary, become converted into a single entity. If a Joint Hindu Family were regarded as a person, 8 then the Joint Hindu Family Pahloomal Motiram would be alone "the existing owner" for the purposes of the West Pakistan Land Reforms Regulation, and in consequence, the rights of the individual co-parceners in the co-parcenary property would suffer a very great diminution for, as against the holding of about 18,000 acres, what would be left to the whole family would be some 500 acres of irrigated land, a maximum of 150 acres of orchards, together with a right to transfer in favour of "heirs" a maximum area of 250 acres and to female dependents, about 100 acres each. The consequence would be a destruction to a great extent of the rights in the co-parcenary property, which under their personal law, each of the co-parcener is entitled by virtue of his joint interest and joint possession to enjoy. The claims made in the present cases by members of this family were on the basis that they were entitled to be regarded as separate "existing owners" each to the extent of his share in the co-parcenary property. That claim was made by them on the basis that the entire land included in their respective declarations pertained to the Joint Hindu Family Pahloomal Motiram. It has been pointed out however, that the lands in fact pertain to two separate Joint Hindu Families and moreover, that the male descendants of Paroomal have a co-parcenary interest in the lands he received from the Joint Hindu Family Pahloomal Motiram. The question of the right of co-parceners was raised in this case for decision by the Chief Land Commissioner. It was raised on the basis of the Land Commission's directive of the 5th September 1959 whereby "a person who had become entitled to any land on account of inheritance before the 7th February 1949, although not entered as such in the revenue records" was included in the definition of "existing owner". The matter was taken before the Land Commission directly, and resulted in a resolution being passed on the 15th December 1959, which included the following passage: "The Commission agreed with the following findings of the Chief Land Commissioner:- (i) A Hindu can be considered as an `existing owner' only if his name is entered as an `owner' in the revenue records. (ii) Only in such cases where a person is entered in the revenue records as a Manager or Karta of a Joint Hindu Family, the members of the co-parcenary can be treated as existing owners." There are two orders of the Chief Land Commissioner in these cases, dated the 16th December 1959 and the 31st May 1960, both of which turn upon his appreciation of (1) the actual status of the claimants before him, (2) the nature of proprietorship in a Joint Hindu Family, and (3) the directions issued to him by the Land Commission. In each of these orders, the Chief Land Commis sioner made the following observation:- "So far as the status of the family is concerned from the above quoted facts and references there is a lot of evidence before me to hold that the family was and is joint and the properties were originally being managed by Rai- Sahib Jhamandas and then Pahloomal Motiram as the heads of the family, although the Record-of-Right did not mention the word Karta (manager) in their respective cases." (The reference to Pahloomal Motiram is obviously misconceived. Pahloomal was the son of Motiram and it is from him that the Joint Hindu Family commences). In each of these orders., the Chief Land Commissioner has included quotations from a standard work on Hindu Law, namely, that of D. F. Mulla. He has mentioned the view of the commentator that the right of a co-parcener in a co-parcenary is best described as an "undivided co-parcenary interest" until a partition, takes place. In his order of the 16th December 1959, the Chief Land Commissioner stated the point for his determina tion to be-"whether the head of the family or any senior member entered as owner without (being) explicitly shown as Karta in the revenue records; could be taken to be a manager in the light of other corroborative evidence as in this case". Treating this as a question of policy, which should be referred to the Land Commission, he adjourned the case until a direction could be obtained. The Chief Land Commissioner, as a member of the Land Commissioner, was aware that on the previous day the Land Commission "had already taken its decision in favour of those co parcenary families only where the person holding lands of a Joint Hindu Family is shown as Karta (Manager) in the Revenue Records." A reply to this - reference was returned by the Land Commission on the 26th May 1960 in the following terms:- "It was decided that the previous decision of the Commission was clear and comprehensive and it did not call for any modification." The Chief Land Commissioner next took up the case on the 31st May 1960, and gave his decision in an order of moderate length in which he reiterated the principles of Hindu law relating to a co-parcenary, and stated the point raised before him as being that "the head of a joint Hindu family should be declared as the Karta for purposes of implementation of the Land Reforms Scheme even though he is not entered as such in the Revenue Records." The point being referred to them, the Land Commission had "desired that the case be decided in the light of the policy decision according to which even the joint family will be treated as a person." He then recorded his final decision in the following words: "In this case none of the other members of the family has been shown as owner or in possession through a Karta in the latest record. They cannot, therefore, be considered to be existing owners even on the basis of the latest interpretation of an existing owner by the Land Commission. According to the existing entries in the revenue records only the name of Lalchand and Rewachand appear in the records as existing owners of the land." The reference to Lalchand and Rewachand was clearly wrong. The name of Lalchand in relation to the Joint Hindu Family Pahloomal Motiram had been replaced by that of Jhamandas as far back as 1936 and that of Rewachand in respect of the Joint Hindu Family Rewaehand Pahloomal had been replaced by that of Rupchand even earlier in 1932. But the purport and reasoning of the decision is clear, namely, that because the word `manager' or the word `karta' did not appear in the revenue record again the names of Jhamandas and Rupchand. Therefore, although it a fact that these persons held the land as representatives &-joint Hindu Families, they could not get the benefit of the policy decision taken on the 15th December 1959, by the Land Commission. It should be mentioned also that the Chief Land Commissioner was not right in saying that the Land Commission had made "a policy decision according to which even the joint family will be treated as a person". The decision actually favoured recognition of the rights of individual co-parceners, but' "only in such cases where a person is entered in the revenue records as a manager or karta of a Joint Hindu Family". It is pertinent at this point to recollect the mutation of names which took place in 1936. There is available in the paper books of these appeals, the statement on the strength of which the name of Lalchand deceased, who had been in charge of the Zamindari C affairs of the Joint Hindu Family Pahloomal Motiram was replaced by that of Jhamandas, wherein it was expressly said that the lands would thereafter be "under control of Seth Jhamanda; as the principal member of the joint family". Nothing more was needed to establish that in the revenue records, Jhamanda; had been expressly recognised for some 23 years as the person who was managing the lands of the Joint Hindu Family of which he was the principal member. To describe such a person as a manager is strictly correct in English terminology. To describe; him as a karta in the Hindu terminology would be equally correct. The decision which the Chief Land Commissioner gave on the 31st May 1960 was thus based only on the visible fact that neither the word `manager' nor- the word `karta' appeared in the latest revenue records, yet it appears from his earlier order of the 16th December 1959, that he was aware that there was "other corroborative evidence" in the case which enabled a decision to be reached whether that description, namely, "Gadial Kutumb Tor", which appeared in the current revenue records was capable of being regarded in substance, and in all relevant- respects, as being the exact equivalent of such a compendious description as is conveyed by the word `manager' or the word `karta'. Under paragraph 4(6) of the Regulation, it is provided that where any dispute arises in carrying into effect the provisions of this Regulation "such dispute shall be referred to the Commission whose decision thereon shall be final". It is apparent that when the case was last decided by the Chief Land Commissioner on the 31st May 1960, there still remained a very large question to be resolved. It is. apparent too that it arose out of the Chief Land Commissioner's attempted interpretation of the policy directive he had received from the Land Commission on the 15th December 1959. It is also clear that the Chief Land Commissioner's appreciation of that policy directive was not fully comprehensive, for it is a mis-statement to say that it directed that "even the joint family will be treated as a person". In fact, that policy directive merely laid down a condition in which a Joint Hindu Family would not be treated as a single person for the purposes of the Regulation, but the rights of its coparceners would be recognised and allowed for in the application of the Regulation. In applying the words of the policy directive, it seems perfectly plain that the Chief. Land Commissioner applied the narrowest possible meaning to the expression "revenue records" and he took an even narrower view of that directive when he insisted that the very words "manager" or "karta" should expressly be found in the revenue records. Being charged with the duty of interpreting the policy directive, it was within his powers to do so according to his lights. Arising out of his decision, there still remained a dispute as to the true meaning of the Land Commission's policy directive, and recourse to the Land Commission for a final decision was thus available, under paragraph 4(6) which has not been availed of. It is possible that the parties affected suffered some apprehension as to the result, from the inclusion by the Chief Land Commissioner in his order of the statement that the Land Commission "have desired that the case be decided in the light of the policy decision according to which even the joint family will be treated as a person." To an apprehensive mind, these words might convey the sense that the decision of the 31st May 1960, by the Chief Land Commissioner, was a decision of the Land Commission itself, but the words employed by the Chief Land Commissioner in concluding the matter are in the first person, viz. "I therefore hold that the decision taken by the Land Commissioner, Hyderabad is correct and in accordance with the policy laid down by the Land Commission." This may be the explanation for the action of the affected parties in having recourse to the Courts from that point onwards. In addition, they approached the Chief Land Commissioner with successive review petitions. In respect of two, which failed on dates in 1962, Devraj moved writ petitions in the High Court, citing also the Chief Land Commissioner's order of the 31st May 1960. These were dismissed summarily, and Devraj's appeal against the dismissal is Civil Appeal No. K-43 before us. There was also a civil suit brought, the result of which is not relevant for the purpose of these cases. Civil Appeals No. 45 by Vishindas and No. 47 by Mahesh are directed against the order of the Chief Land Commissioner dated the 31st May 1960 and a review order of the 3rd May 1962. Civil Appeal No. 46 by Vishindas alone is directed only against the Chief Land Commissioner's order dated the 31st May 1960. These appeals were brought within the Supreme Court jurisdiction under Article 160 of the Constitution of 1956. The Court granted leave to appeal in these cases -mainly on the consideration that leave had already been granted in earlier petitions which are now the subject of Civil Appeals No. K-1, K-2, K-3 and K-4 of 1963. In these last mentioned appeals, the order under appeal is by a Full Bench of the West Pakistan High Court dealing with writ petitions brought under Article 170 of the Constitution of 1956, to challenge, in the main, the Chief Land Commissioner's order of the 31st May 1960. It will be convenient now to state the main grounds upon which the two judgments delivered by the Full Bench have proceeded. The judgment of Wahiduddin, J., accepts the position as being that the lands mentioned in the case all pertain to a single joint family, and proceeds to find that the Joint Hindu Family Pahloomal Motiram as such had no locus stand", to pursue the writ since it is not an entity in law. However, in the course of the proceedings in the writ brought on behalf of Joint Hindu Family Pahloomal Motiram, a number of individual petitions were filed by members of that family, and this enabled the learned Judge to proceed to consider the case on its merits. He found that the Land Commission authorities had full jurisdiction to deal with the lands in the case, and that the Land Commission itself had full power to issue directives to the Chief Land Commissioner for the implementation by him of the provisions of the Regulation. A question was then raised that the Chief Land Commissioner bad failed by his order to implement the Land Commission's directive of the 15th December 1959. The provisions of rule 8 of the Manual of Village Revenue Accounts for Sind cited above were placed before the High Court and it was pressed that whenever the names of Jhamandas and Rupchand appeared in the revenue records in the appropriate column, expressly as representatives of the respective Joint Hindu Families, it must be assumed in the language of the rule that they were being shown as managers, and therefore, there was substantial compliance with the Land Commission's directive aforesaid. This contention was rejected by the learned Judge for the following reasons. He said firstly, that there was nothing to show that the Chief Land Commissioner's attention had been drawn to this rule, secondly, that "strictly speaking" the entries had not used the word "Manager" and therefore it could not be said that the Chief Land Commissioner's order was perverse, since it was a possible order, and thirdly that at the most it could be said that he had not followed the spirit of the Land Commission's directive. The learned Judge went on to hold that the Land Commission's notification of the 5th September 1959 was of no avail, on the ground that under Hindu law, a member of a Joint Hindu Family does not "become entitled to any land on account of inheritance". Next, the learned Judge considered the question whether the High Court had power to review decisions of the Chief Land Commissioner for "error apparent on the face of the record", when he had acted competently and within his jurisdiction. At the time when the case was heard in the High Court, the superior constitutional instrument was the Laws (Continuance in Force) Order, 1958, which by Article 2(4) gave power to the High Court to issue writs, inter alia of certiorari. The learned Judge held however that this power was subject to the plenary power of legislation possessed by the Chief Martial Law Administrator under the same Article, and further that sub-Article (5) of Article 2 forbade the issue of a writ to the Chief Administrator of Martial Law, or any person exercising power or jurisdiction under his authority. The learned Judge found that all Land Commission authorities were acting under the authority of the Chief Martial Law Administrator and therefore the required writs could not be issued. He then referred to paragraph 27 of the West Pakistan Land Reforms regulation, which provides a bar of jurisdiction, and found that no jurisdiction was left in the High Court or in the Supreme Court, in respect of any matter which any authority acting; under the Regulation was empowered to determine, and similarly, no Court could issue injunctions or other orders in relation to any proceeding before a Land Commission authority, or anything done by such authority, or even anything intended to be done by or at the instance of such authority. It was pressed on behalf of the petitioners that there was on this occasion failure by the Chief Land Commissioner to decide in accordance with the Regulation itself, on the basis that he had misapplied the directive of the Land Commission. The learned Judge found that jurisdiction had been exercised by the Chief Land Commissioner within the principle laid down by this Court in the case of Zafrul Ahsan (1) P L D 1960 S C 130 and consequently there was no scope for judicial review. The second judgment was written by Qadeeruddin, J., who observed that by the appearance of the name of a representative of a Joint Hindu Family in the revenue records, there was an approximation to the requirements of the directive of the 15th December 1959; but went on to say that this directive, not having been notified, was without legal effect. The learned Judge further observed that by saying "Jhamandas for joint family", the full sense of a Karta or manager was not conveyed, on the basis that the word "for" imports the sense of agency and a karta is not an agent Moreover, the documents on which reliance was placed before the High Court did not appear to have been placed before the Chief Land Commissioner, and in any case, they related only to a few hundred acres out of 18,

000. The learned judge expressed the same view as in the other judgment on the point whether devolution within a Joint Hindu Family was a form of inheritance. As to the bar of jurisdiction, the learned Judge observed that paragraph 3 of the Regulation has the effect of overriding all other laws and the consequence is that no order can be made by a Court "except in exclusive recognition of the Regulation and the Rules and Orders made thereunder" and since all such action is reserved by paragraph 27 to the authorities under the Regulation, to the exclusion of the Courts, it must follow that the Courts can only interfere if action were taken by Land Commission authorities entirely outside the Regulation. That was not the case in the petitions before the Court, and there was no allegation that "the Regulation or the Rules, or Orders made thereunder have been used as a cloak to cover acts done in bad faith". He finally observed that if the co-parceners had taken the precaution of partitioning the land among themselves, they would have avoided losing so much land, as they had done by the application of the Regulation. But in this, respect, they had been "sitting on the fence" being uncertain whether "to remain a joint family or not" and if they had desired to remain joint "there was ample time at their disposal to get the name of the Karta entered in the revenue records as such and to get the entries corrected if correct entries had not been made owing to the carelessness of the Revenue Department. They are now attempting to take advantage of the uncertain or middle course that was adopted by them by allowing the names of two

members of the family entered in the revenue papers as owners `for' the family." It seems to have escaped the notice of the learned judge that the manner and the method of the relevant entries tae revenue records had been adopted not since 1947, but from much earlier dates, on this record in 1932 and 1936, when the complexities of evacuee property law and of the Land Reforms Regulation were not yet thought of. The Joint Hindu Family is a device, sanctioned by the personal law of the Hindus, for the protection and preservation of property, and to secure thereby integration of the agnatio family. In the absence of any legislative attack upon it, no reason would appear why these advantages should have been lost by resort to partition, prior to the promulgation of the Land Reforms Regulation. The view of Wahiduddin, J. that the Joint Hindu Family Pahloomal Motiram could not apply in that name for a writ is justifiable both on the basis that in the eye of law, a Joint Hindu Family is not a collective entity notwithstanding that under certain statutes it is permitted to appear and sue as such, but also because in the cases before the High Court, the attempt was to assert the individual rights of the co-parceners and not those of the Joint Hindu Family considered as a unit. The statutes aforesaid appear to be giving an advantage, under the respective laws, to the co-parceners collectively, as against the treatment they would receive under the same law if they were treated as individuals. Here indeed, the case is the opposite, the advantage lying in individual treatment. The proposition is difficult to refute that devolution within a Joint Hindu Family is a form of inheritance. It is distinguished from the more usual forms of succession which involve the elimination of a present holder before they take effect, by the fact that, within a Joint Hindu Family, such inheritance or devolution of property occurs from the fact of birth, irrespective of the death of any person, even including the common ancestor. The death of a co-parcener involves no more than a re-distribution of the estate among the surviving co-parceners, whose interest nevertheless remains undivided. Yet, the concept of heirship by natural descent is present, and it is an heirship in relation to property, and therefore it has certain true features. of a form of inheritance. The contrary view expressed in both the judgments delivered by the Full Bench, to avoid the application of the Land Commission's notified order of the 5th September 1959, would appear, speaking with respect, not to be maintainable. Wahiduddin, J., thought that the mere fact that according to Mitakshara Law, property devolves by survivorship, whereas under Dayabagah law, it goes by succession, was sufficient to take the case of a Mitakshara Joint Hindu Family outside the rule laid down in the aforesaid notified order favouring the recognition of an existing owner as "a person who has become entitled to any land on account of inheritance before the said date although not entered as such in the revenue record". The said date was the 7th February 1959, and on that date, it was possible to determine with exactness the number of co-parceners in each of the Joint Hindu Families concerned. In other words, the fact that these Families have a fluctuating membership would not. Stand in the way of an exact determination for the purposes off Regulation. But to say' that a co-parcener in a Joint Hindu Family; even one who say, was born on the 6th February 1959,is not a person who had become entitled to any land on account of inheritance" appears clearly to be based on too narrow a view of the expression "inheritance". The more correct view to be taken of this provision, which is to be read as a part of the Regulation, is that it covers the case of every person having a present right to any land, but whose name was not entered as the owner against such land in the revenue records, and it is immaterial what the reason might be for such omission. Indeed, the fact that the owner, shown in the revenue records and under the revenue law, is the person managing the estate of a certain Joint Hindu Family, in which each co-parcener has a present, existing co-parcenary interest, albeit undivided, so that he has a right to joint possession and enjoyment, is as good a reason as any for regarding the omission of the names of any or all co-parceners, other than the manager, as immaterial. If then the notified order of the 5th September 1959 be regarded as being of general application to all forms of inheritance, it becomes necessary to regard the directive issued by the Land. Commission on the 15th December 1959 in a totally different light from that adopted in the judgments delivered in the High Court. Thus, it has been held in the judgment of Qadeeruddin, J., that this directive is "not" the law "because it was not notified under paragraph 4(5) of the Regulation", and the learned Judge appears to have thought that if by the directive, a variation had been brought about in the rule laid down in the notified order, such variation was void for lack of necessary formality prescribed by the Regulation. The learned Judge seems also to have been of the view that, when on the 26th May 1960, the Land Commission passed a resolution in respect of the "grievances of Hindus regarding the Land Reforms in West Pakistan" that "the previous decision of the Commission was clear and comprehensive and it did not call for any modification," that the Land Commission was referring to some decision other than that reached on the 15th December 1959. This view is tenable only on the basis that inheritance within a Joint Hindu Family was not within the contemplation of the notified order mentioned above, and for the reasons already given, it is difficult to sustain the proposition. The notified order must be regarded of general application, and consequently, as a rule which the Chief Land Commissioner was bound to apply in the implementation of the Regulation. It being a fact that in its application to Joint Hindu Families, the notified order had given rise to a doubt in the mind of the Chief Land Commissioner, appropriate action, in compliance with paragraph 3, would have been to refer the matter to the Commission, for directions as to how the Regulation was to be implemented in this regard. Such a reference was made by members of the Hindu community. The 'directive of the 15th December 1959 was clearly an answer to this reference, and there need be no difficulty in regarding it as a direction to the Chief Land Commissioner how he was to apply the notified order to the case. It was not necessary, in order to make the direction binding qua the Chief Land Commissioner, that it should have been expressed in the form of a notified order. By the directive of the 15th December 1959, no new law was being made, but an interpretation was being given of the law laid down by the notified order, and the duty of the Chief Land Commissioner was to apply that law in conformity with this interpretation. If that aspect of the directive had been present to the mind of the learned Judges, they may perhaps not have been led to the conclusion appearing in each of the two judgments, that the Chief Land Commissioner's very narrow application of the directive, to the determination of the revisions before him, was based on a "possible view". The learned Judges may have been right in their view, if that directive had been intended to be a law, and was in fact a law. For, one of the modes of interpretation of laws is the eo nomine construction, where the law is applied to things or persons by name. The learned Judges have sought to provide justifications for the action of the Chief Land Commissioner in terminating the revision petitions before him on the eo nomine basis" either the word `Karta' or the `manager' should be there, or otherwise all rights go by the board", as if the directive were a law. But where the directive being followed was not a law, but N merely a statement of how the Land Commission interpreted the law of inheritance in respect of Hindu co-parcenaries, it is obvious that the substance of the interpretation should prevail, and correspondingly that the words of the directive should be employed for the advancement of the remedy provided by the notified order, and not for its restriction. There is a patent error of appreciation by the Chief Land Commissioner in this regard, and the regrettable impression is created, which has furnished ground for some comment in the judgment of Wahiduddin, J., that the Chief Land Commissioner has made use of certain words employed by the Land Commission to elaborate the rule laid down in their notified order, in its application to Joint Hindu Families, as the ground for defeating wholly the rights which in the Hindu Law belong in fact to the co-parceners, on the basis of one expression of description being used rather than another, when both in substance mean the same thing. When the matter is viewed in the light indicated above, it becomes possible to understand what was meant by the Land Commission when on the 21st May 1960, it declared that further clarification of the rule for the purpose of its implementation was not necessary. The reference here was not to any other "previous decision" than the clarification that had been furnished in the directive of the 15th December 1959 and if the Chief Land Commissioner had appreciated that directive in this light, there seems little doubt that he would not have been led, as has in fact happened, into sweeping away legitimate rights belonging to a number of the petitioners before him as co parceners in the joint property of certain Joint Hindu Families, on the basis of a mere variation of description. It can be said with assurance, as has been said in the judgment of Qadeerudin, J. that this course was not adopted by the Chief Land Commissioner "as a cloak to cover acts done in bad faith," but at the same time on a true appreciation of the entire course of this matter within the Land Commission, it cannot be denied that there has been a misconception, on the part of the Chief Land Commissioner in regard to the direction given to him in the relevant respect by the Land Commission. His belief that the Land Commission had issued a "policy decision according to which even the joint family will be treated as a person" is clearly wrong. The revenue records were the whole basis of the functioning of the Land Commission, and nothing contained in them can be thought to be outside the knowledge or the contemplation of the Chief Land Commissioner, so that failure to place all relevant items before him is no justification for his arriving at a decision which ignores rights that are based on such records. Indeed, the Chief Land Commissioner was fully aware that there was at least one Joint Hindu Family, whose estate was under the control of Jhamandas. His idea that there was only one Joint Hindu Family concerned was clearly wrong. There were two such Families within the cases before him, namely the Joint Hindu Family Pahloomal Motiram and the Joint Hindu Family Rewachand Pahloomal, and possibly some of Paroomal's property too was co-parcenary property qua his male descendants. In relation to the terminal date, the 7th February 1959, it should have been possible, perhaps with a certain amount of labour and examination of detail, to determine with accuracy, who were the co-parceners in each of the estates concerned, and what was the extent of their shares. The calculations adopted by the various petitioners before the Chief Land Commissioner clearly required to be revised in more than one respect. In particular, the claims put forward on behalf of women petitioners were totally outside the notified order of the Land Commission, and may have been rejected summarily on that ground. It still remains to consider the question of the jurisdiction of the High Court, at the relevant time, to make any order modifying that of the Chief Land Commissioner: The writs were moved in certiorari on the plea of error apparent on the face of the record. On the' above analysis of the whole set of facts and legalities that were presented before the Chief 1Land Commissioner (assuming for this purpose that he had available to him the entire body of the revenue records, for reference, whether or not they were placed before him by the petitioners themselves) it would appear that there is indeed an error of law and in fact there may be more than one, affecting the final order made by him. The learned, Jadges in the High Court were dealing with the case at a time when the bars to jurisdiction applicable in the premises were confined 'to those contained in Article 2 of the Laws (Continuance in Force) Order and in paragraphs 3 and 27 of the Land Reforms Regulation. The view which they have taken, namely, that the power given to the Supreme Court and the High Courts to issue writs, inter alia of certiorari, by Article 2 of the Laws (Continuance in Force) Order was subject to the power of the Chief Martial Law Administrator to legislate to the contrary effect, is undeniably correct. The argument was advanced in these appeals that the power of issuing such writs was given to the Supreme Court and the High Courts in unqualified terms by Article 2(4) of the said Order, which was clearly a constitutional instrument, and which could only be amended in this regard by order of the President. That is undeniable, but at the same time, the question would be whether these Superior Courts were being empowered in plenary way, appropriate, say, to an absolute monarch, to issue such instruments in all cases and under all laws, at their discretion or was it that in respect of each separate law, the: power to issue writs for its enforcement was a matter determinable by that law, within the legislative power of the maker. Thus, for instance, if a law were generally to provide, that warrants of arrest for debt might be issued by the Civil Courts, it would nevertheless be in the power of the Legislature when making a law relating to a particular kind of debt, to provide that warrants of arrest or execution should not: issue thereunder. In other words, the provision in Article 2(4) is capable of being understood as giving a power of peremptory correction of executive and judicial or quasi-judicial error, by the short-handed method of a writ, in the sense that without such express provision, the Superior Courts might be thought not to possess that power at all. It is to be remembered that the writ jurisdiction is one of very recent introduction in Pakistan, so that it required to be introduced by express direction in the successive constitutional instruments. Thus, it was firs introduced by express amendment in the Government of India Act, 1935, and later that particular section was repealed and for a time the power was not available. It was re-introduced into the Government of India Act by constitutional amendment and was later included in the first indigenous Constitution of Pakistan in the year 1956, where the power was conferred by expression ire three separate Articles. When the Constitution of 1956 was reduced to a nullity by its abrogation on the 7th October 1958 and later on the 10th October 1958 restored in "shadow" form by Article 2(1), it may well have been thought necessary to state in the Laws (Continuance in Force) Order expressly that this power should belong and would continue to belong to the Superior Courts. But that would not necessarily mean that that power belonged to the Superior Courts inherently, and in respect of every kind of executive, judicial or quasi judicial action, irrespective of provision in that respect by competent laws of the various Legislatures. This view would make the provision in Article 2(4) consistent with the provision in Article 2(2) giving the plenary power of legislation to the President and the Chief Martial Law Administrator. That power was in relevant respects to be exercised as nearly as may be according to the scheme laid down in the abrogated Constitution of 1956, and it was an integral part of that scheme that the jurisdiction of the Supreme Court fell within the legislative competency of the Centre while the jurisdiction of the High Courts fell within the scope of the Provincial Legislature. On behalf of the Chief Land Commissioner reliance was placed on the provision in Article 2(5) of the Laws (Continuance in Force) Order which forbade the issue of writs to the Chief Martial Law Administrator or any person acting under his authority, and it was contended that the Regulation itself represents a command of the Chief Martial Law Administrator, whereby he has conferred authority on the Land Commission to implement the Regulation through the Chief Land Commissioner and other authorities subordinate to him. The aspect of direct operation of authority in the making of the Regulation and through the Regulation itself is undeniable. The case is not comparable to that of legislation by a representative elected Legislature, which in making a law does so on behalf of the State constituted by the Executive, the Legislature and the Judiciary so that the operation of the law, is under the authority of the State and is not under the authority of the Legislature. In the period of Martial Law, which on the legal side was governed by the Laws (Continuance in Force) Order, the superior power of the State became vested in the Martial Law itself, and was embodied in the person of the Chief Martial Law Administrator who was invested with plenary power of making Regulations to override all laws. The presence of the 'President would not appear to have had effect to diminish the fullness of that power, and it is a fact that during the period of Martial Law, the offices of President and Chief Martial Law Administrator were held by the same person from the 25th October 1958, onwards. The authority of the Land Reforms Regulation was clearly derived from the Chief Martial Law Administrator as a person and it is therefore possible, and indeed necessary, to regard all the operations of the Land Commission, of the Chief Land Commissioner, and of all subordinate authorities of the Land Commission as deriving their authority from the command or dictate of the Chief Martial Law Administrator, who had made the Regulation. A similar view, though for different reasons, was taken by a Full Bench of the West Pakistan High Court, in the case of Gulab Din (1) P L D 1961 Lah.

952. Consequently, at the time when the High Court considered and decided the writ petitions in the present cases, which were sought for the purpose of correcting errors in an order made by the Chief Land Commissioner, the bar of Article 2(5) of the Laws (Continuance in Force) Order would seem clearly to have been operative to prevent the issue of any writ to him. On a later date, still within the period of Martial Law, two further Martial Law Regulations Nos. 88 and 93 were issued which in the most comprehensive terms barred all proceedings whatsoever in any Court, in respect of anything done or intended to be done or even anything expressed or purported to be done by any Martial Law authority, but the effect of these Regulations need not be considered as they ceased to have effect on the coming into force of the present Constitution on the 8th June 1962. The learned Judges in the High Court have also found a bar to their jurisdiction in the present cases, by reason of paragraph 27 of the Land Reforms Regulation; and since by expression in the present Constitution, this Regulation continues to have force as an existing law, it is necessary for this Court to consider whether the view taken by the High Court in bar of its own jurisdiction is correct in this respect. If it is correct, and since the law is in existence, it must have effect also to bar the issue of any corrective order by this Court as well. It may be noted that the bar of Article 2(5) of the Laws (Continuance in Force) Order is no longer effective, since that order was not among those whose effect was preserved by the present Constitution. The view of Qadeeruddin, J., that paragraph 3 of the Regulation giving effect to its provisions notwithstanding anything to the contrary in any other law or any order or decree of a Court or authority or any legal instrument whatsoever, placed everything done within the Regulation outside the reach of the Courts, is undeniably correct. This protection is emphasised by elaborated expression in paragraph 27, expressly barring judicial interference. Paragraph 27(1) provides in relevant respects, that no Court should have jurisdiction in respect of any matter which by the Regulation, the Land Commission or any officer acting under the authority of the Commission is empowered ~ to determine. Paragraph 27(2) specifically deprives the Court of power to grant "any injunction or other order" in relation to any proceedings before the Commission or in respect of anything done or intended to be done by the Commission thereunder. It has also been correctly pointed out in the judgments of the High Court that whatever has been done in the case has been done within the powers vested in the Commission by the Regulation. That being the case, the bar must also apply to this Court, unless it can be thought that the provision is lacking in constitutional validity. On that point, no doubt can possibly be felt that the Land Reforms Regulation has validity as an existing law of the Centre, by the effect of the present Constitution. The Centre is invested with legislative power in relation the jurisdiction of the Supreme Court and consequently this Court is bound to observe the limit thus placed upon its power of judicial review and relief, in respect of every thing done within the scope of the Land Reforms Regulation, by duly constituted authorities. Such an objection can clearly also be construed by reference to the provision in the President's Order-No. 26 of 1962 in paragraph 7, which provides protection against challenge in Court for all things done or proceedings taken "in connection with the administration of Martial Law by any Martial Law authority or by any person on behalf of a Martial Law authority during the Martial Law period." The land reforms carried out under the Land Reforms Regulation were undoubtedly a part of the administration of Martial Law, and in that view, the Land Commission, which was carrying out the reforms under the Regulation was to be deemed the Martial Law Authority, at the highest level within the complex of the Land Reforms Regulation so that "the Chief Land Commissioner would fall within the description of a person acting on behalf of a Martial Law authority, and his order of the 31st May 1960, being made during the Martial Law period, would be immune to any form of treatment by the Courts. The terms in which this bar of jurisdiction is couched are even more stringent than those of the Land Reforms Regulation, in paragraphs 3 and

27. It has to be accepted that the aforesaid order of the 31st May 1960, is provided with defences against every judicial remedy in a highly effective manner. It ill becomes the judiciary, and it would be in violation of the oath of office of the Judges, that the Courts should strain to enter territory forbidden to them by law, and what follows is said in total realisation of that fundamental obligation. This set of cases has received intensive examination at the hands of the learned Judges in the High Court, which has been repeated with some enlargement in this Court, and in both Courts, the impression is seen to be inescapable that deprivation of valuable property rights, assured under the-personal law of the affected parties, is to take place in consequence of an order which is not based on correct appreciation of the law of the Land Reforms Regulation. To say so is not merely to suggest something unconscionable in a general sense, that is something not in accordance with what is right and reasonable, something about which scruples should be felt. What is hit is something which in the terms of the present Constitution, may well be described as the constitutional conscience of Pakistan. By Article 2, an assurance is given, to every citizen of Pakistan, of treatment in accordance with law, and only in accordance with law. The right of property is specifically protected by the emphatic words:- "In particular, no action detrimental to the property of any person shall be taken except in accordance with law." The law in this case enables sequestration of property, and it does so in the way of advancing social justice, by providing land for the landless many, from out of the abundance that, through the centuries, under the protection of law, has accumulated in the hands of the few. The law sets a limit on what must be left to those on-whom it falls, so that they are not converted into a new landless class. That too is in the way of social justice, the observance of which, according to the principles enunciated by Islam, is one of the high objectives of the Constitution. To secure this end the law provides for ascertainment of the landed property of each such land-owner. The Constitution is sensitive to the existence of rights under "personal law". The expression is used in the first Principle of Policy. By Article 7, "each organ and authority of State" is enjoined to act in accordance with all the Principles of Policy, although such action is not enforceable at law. The third Principle of Policy obliges that "the legitimate rights of the minorities should be safeguarded". Here the affected parties are Hindus, who follow their own personal law in matters of property rights acquired by inheritance, and their individual interest in the property involved is a matter of "legitimate right". They had sought-to have the law of the Land Reform Regulation applied to them, in relation to such individual interest. In the light of the Constitutional conscience, it was a legitimate prayer. However, as has been pointed out above, there is still scope for the matter to be taken before the Land Commission for a final decision and the labour spent in the Courts upon the elucidation of all the important questions arising in these cases will not have been in vain, if the result, as represented in the judgments delivered, proves to be of some assistance to the Land Commission in arriving at a final decision. For these reasons, and with these, observations, I would dismiss all these appeals, but find ample reason in the circumstances of the entire case for an order leaving the parties to bear their own costs. FAZL-E-AKBAR, J. -I agree. HAMOODUR RAHMAN, J.-I agree. S. A. RAHMAN, J.-I respectfully agree with the conclusion reached by my Lord the Chief Justice in this case and generally with the reasoning by which it is supported. Even if, as a matter of strict interpretation, the term "inheritance" may be regarded as inapt to describe the process of "succession" under the Mitakshara system of Hindu Law, I am disposed to think that the Land Commissioner's notification of the 5th September 1959, used that term loosely and that it was intended to cover succession under Hindu Law as well. With respect, I also fully endorse the observa tions of my Lord made in the final paragraph of his judgment. B. Z. KAIKAUS, J.-I find myself in agreement with my Lord the Chief Justice except with respect to a part of the discussion pertaining to jurisdiction. My Lord the Chief Justice is of the opinion that the power of issuing writs granted by the Constitution to the High Court can be taken away by the Legislature if the powers of the High Court be- one of the items with respect to which the Legislature can legislate. With the utmost respect I have to say that the power granted by the Constitution can be taken away only by an amendment of the Constitution unless it be provided in the Constitution itself that the power shall be subject to law. It is open of course to the Constitution to say that al power granted by it may be controlled by a law passed by al competent Legislature, but unless it says so expressly or by Q necessary implication the mere fact that a particular item is within the Legislative competence of a Legislature does not enable the Legislature to legislate with respect to that item in violation of the Constitution itself. The power would in such a case be liable to be taken away only if that particular provision in the Constitution granting the power is amended. Para. 27 of the Land Reforms Regulation was, however, not just a law framed by the Legislature but it was part of a Regulation enacted by the Chief Martial Law Administrator who possessed power even to frame regulations which were inconsistent with the Continuance of Laws Order: No objection can therefore be taken to the validity of para. 27 and it will have effect in accord ance with its tenor with respect to the jurisdiction of Courts. Regulations 88 and 93 and section 7 of President's Order 26 of 1962 are a complete bar to the jurisdiction of Courts in respect of the impugned orders of the Chief Land Commissioner. R Section 7 of the President's Order debars a Court from questioning the validity of an order passed or proceeding taken by a Martial Law authority and Martial Law authority has been defined in that order so as to include any person acting under a Martial Law Regulation. The Chief Land Commissioner as well as the Land Commission are Martial Law authorities as envisaged by President's Order 27 of 1962 and their orders are not liable to be challenged. Before Order 26 of 1962 came into force there were Regulations 88 and 93 and the language used in them in respect of the bar placed upon the jurisdiction of the Courts was not less strong than the language used in President's Order 26 of 1962. I agree that the appeals be dismissed and the parties left to bear their own costs. A.H. Appeals dismissed.