1983 PLP 1585 (CLC)

SAEEDUZZAMAN SIDDIQUI, J.‑This order will govern the disposal of the above two petitions in which common question of law arises. The peti tioners in both the petitions have challenged the orders of Land Commis sioner, Sind, passed in review recalling his earlier order confirming the gifts made by. petitioners in favour of non‑heir under the provisions of M. L. R: 115 (I will hereafter refer M. L. R 115 as the Regulation in this order) which has been confirmed by Chief Land Commissioner, in revision. However, in order to decide the legal question involved in these petitions it will be necessary to state here some of the admitted facts of these petitions which are relevant for the decision of the controversy in volved in these cases. In Petition No. 318/74 the petitioner No. 1 owned and possessed land equivalent to 19,362 P. I. Units on 1st December, 1971. Out of this holding she received by way of gift land equivalent to 11665 P. I. Units from Mst. Miran and Mst. Kariman on 8th January, 1970. On 3rd January, 1970 the petitioner No. 1 alleged to have gifted land equivalent to P. I. Units 5560 to her distant nephew Allah Jurio (petitioner No. 2). The petitioner No. 1 on coming into force of the Regulation. submitted a declaration as required under the law disclosing the transfer made by her by way of gift in favour of petitioner No.

2. The Deputy Land Commissioner, forwarded the declaration of petitioner No. 1 to the Land Commissioner, Sind, who by his Order No. 185‑LC‑4/72‑1830 dated 17th June. 1972 declared the aliena tions made by petitioner No. 1 in favour of petitioner No. 2 as not void under paragraph 7 of the Regulation and accordingly the holding of peti tioner No. 1 was held to be equivalent to 13,802 P. I. Units on 20th December, 1971 and, therefore, the land which was in excess of 12,000 P. I. Units only was surrendered by petitioner No.

1. In petition No. 160/74 Ghulam Haider Shah, petitioner No. 1 who is now dead (I will hereafter describe the deceased Ghulam Haider Shah as `the deceased' only) was found to own and possess properties equivalent to 35,927 P.I. Units on 1st March, 1967. The deceased between the period from 2nd February, 1967 to 19th December, 1971 had gifted agricultural land in favour of his several relations equivalent to 19760 P. I. Units. The deceased submitted his declaration disclosing the gifts made by him between the period from 2nd February, 1967 to 19th December, 1971 on the enforcement of Regulation which was forwarded to Land Commissioner, Sind. The Land Commissioner, Sind by his order dated 18th June, 1972'declared all gifts made by the deceased as not void under paragraph 7 of the Regulation except the gift made in respect of land in Deh Pithoro equivalent to 2137 P. I. Units which was held to be in violation of the provisions of the Regulation. As a result of the order of Land Commissioner, Sind, dated 18th June, 1972 the holding of the deceased on 20th December, 1971 was found to be equivalent to 16167 Units and accordingly the land which was in excess of 14000 P. I. Units was surrendered by the deceased. On 2nd September, 1972 the Governor of Sind, amended Land Reforms Regulation in its application to Province of Sind by substituting the follow ing proviso to paragraph 7(i)(b) of the Regulation in place of the existing proviso :‑ "Provided that any transfer of land or creation of any right or interest in or encumbrance on any land by way of gift by a person to whom this clause applies shall, subject to the next succeeding proviso, in no case be held by the Commissioner to be a bona fide transaction Provided further that nothing in this clause shall apply to‑ (i) any transfer of land or creation of any right or interest in or, encumbrance on any land, by way of gift or otherwise, made by a person in favour of his heir ; or (ii) any transfer of land or right or interest therein, by way of gift, made by a person in favour of his widowed or unmarried sister, who has not received her due share of inheritance of ancestral land ; or (iii) any transaction whereby any land was alienated in exchange. for an area of land equivalent to the same or substantially same produce index units as the land alienated ; "and (n) Explanation II shall be omitted and shall be deemed always to have been so omitted." The above newly added provisos to paragraph 7(i)(b) of the Regulation pro vided that the land gifted to a person who is not the heir of the donor could not be declared to be a bona fide transaction by the Land Commission, Authority. After incorporation of the above provisio to paragraph 7(i)(b) of the Regulation the Land ‑ Commissioner, Sind in exercise of his suo motu powers of review declared the gifts made by peti tioner No. 1 in both the above petitions in favour of their relatives except the gift made by the deceased in Petition No. 160/74 in favour of his widow sister equivalent to 26.8 acres, as void under the newly added proviso to paragraph 7(i)(b) of the Regulation by reviewing his earlier orders confirming these transactions and declaring them as not void under paragraph 7 of the Regulation. In Petition No. 318/74 the Land Commis sioner, Sind issued notice to petitioners on 2nd November, 1972 to review his earlier order in exercise of his power of suo motu review under the Regulation and passed the final order on 21st December, 1972 while in Petition No. 160/74, it is alleged by the petitioner that no such notice was issued to them and this fact is not denied by the respondents. In Petition No. 160/74 the order in review was passed by the Land Commissioner, Sind, on 27th December, 1972. The above orders of the Land Commissioner, Sind dated 21st December, 1972 and 27th December, 1972 were challenged , by petitioner No. 1 in petition No. 318/74 and the deceased in Petition No. 160/74 respectively before the Chief Land Commissioner who confirmed the same. In the above background the learned counsel for the petitioner in the above petitions contended before us that the order in review passed by the Land Commissioner, Sind, and confirmed in revision by the Chief Land Commissioner is an order without jurisdiction, as it was made on the basis of amendments dated 2nd September, 1972 which are not retrospective in their operation. Alternatively it is contended that if these amendments are held to be retrospective in their effect they did not affect the. transactions which were past and closed. Since the respondents did not appear and defend these petitions we had the advantage of hearing only the learned counsel for the petitioners in these cases. It is an admitted position that the alienations made by way of gifts by the petitioners in the above petitions were in favour of persons who were not the heirs of the petitioners and these gifts were declared as not void under paragraph 7(i)(b) of the Regula tion by the Land Commissioner, Sind, much before the amendments which were introduced in the Regulation on 2nd September, 1972. It is quite obvious that under the original proviso to paragraph 7(i)(b) of the Regulation, the Land Commission Authority had the jurisdiction to declare a gift made in favour of non‑heir as not void if it was found to be bona fide transaction. In both the above petitions the gifts made by the petitioners in favour of non‑heir were found to be bona fide and were declared as not void under paragraph 7 of the Regulation by the Land Com missioner, Sind on 17th June, 1972 and 18th June, 1972 respectively. These orders were therefore, perfectly legal under the unamended proviso to para graph 7(i)(b) of the Regulation when they were passed by the Land Com mission Authority. The sole ground on which these orders were reviewed by the Land Commissioner, Sind, was that they became void under the newly added provisos to paragraph 7(i)(b) of the Regulation. The questions therefore, which arise for consideration in these cases are ; (i) whether the amendments made in the Regulation by the Governor of Sind on 2nd September, 1972 is retrospective in operation and (ii) if these amendments are held to be transactive, whether these amendments also affected the transactions which were past and closed ? The competency of Legislature to enact laws retrospectively and to provide that they will also affect vested rights and transactions which are past and closed cannot be doubted but in order to produce that effect the statute must be expressed in a language which is capable of only one meaning. If the language of the statute is capable of being interpreted in two ways, one preserving the vested rights and obligation and the other impairing them, then the Courts will adopt the construction which preserved the vested rights and lean against the construction which impaired the vested right and affected trans actions which are past and closed. No rule of construction is more firmly, established than this, that a retrospective operation is not to be given to a statute so as to impair an existing right or obligation. We will, therefore here examine the language of Ordinance XIV of 1972 to find out if the Legislature by making the amendment in the Regulation intended to interfere with the vested rights and effect the transactions which were validly con cluded under the old law. The short title, extent and commencement of the Ordinance is provided in section 1 as follows :‑ "

1. Short title, extent and commencement‑(1) This Ordinance may be called the Land Reforms Regulation (Sind Amendment) Ordinance, 1972. (2) It extends to the Province of Sind. (3) It shall come into force at once and be deemed to have taken effect on 11th of March, 1972." No doubt in subsection (3) of section 1 of the Ordinance it is provided that it shall be deemed to have taken effect on the 11th of March, 1972 but there is nothing in the language to suggest that the Legislature also intended to interfere with ‑the rights duly acquired and vested in accordance with the old law. If the Legislature intended that the cases already finalized under the old provision of paragraph 7(i)(b) of the Regulation be reopened and decided in accordance with newly added proviso it should have provided so in the Amending Ordinance. In the absence of a clear provision to that effect in the Ordinance XIV of 1972 it cannot be presumed that the Legislature intended to interfere with the vested rights of a party duly acquired in pro ceedings which were concluded in accordance with the provisions of the old paragraph 7(i)(b) of the Regulation. The mere fact that the Amending Ordi nance XIV of 1972 made amendment effective from 11th March, 1972 was not sufficient to reopen the cases duly decided and closed in accordance with the law then existing. It is well‑settled rule of interpretation that a statute is not to be construed to have a greater retrospective operation than its u language made it necessary. After examining the provision of Amending' Ordinance we are of the view that the retrospective operation given to the amendments by providing in Ordinance XIV of 1972 that it will be deemed to have taken effect from 11th March, 1972 was not sufficient to make the amendments applicable to the cases which were already concluded and closed' under the old law. We are, therefore, of the view that reopening of the cases by respondent No. 2 in exercise of his suo motu review power on the basis that the transactions already confirmed under the old law before the amendment dated 2nd September, 1972 became void under the amendment was without any lawful authority as the amendment made on 2nd September, 1972 by its own force did not render these transactions which were already con cluded and closed in accordance with the provision of old paragraph 7 of the Regulation as void. We are also of the view that in petition Nos. 160/74 the order passed by respondent No. 2 in exercise of his suo motu power of review was vitiated as no notice was given to the deceased and other petitioners before reviewing the order dated 18th June, 1972 as required by law. We accordingly declare the order dated 21st December, 1972 passed by respondent No. 2 and order dated 28th February 1973 and 18th December, 1973 passed by respondent No. 1 in Petition No. 318/74 and orders dated 27th December, 1972 and 22nd December, 1973 passed by respondents Nos. 2 and 1 respectively in petition No. 160/74 as without lawful authority and of no legal effect. As the respondents did not appear and contested the petitions there will be no order as to costs. M. Y. M. Petition allowed.