2012 PLP 1725 (SCMR)

MIAN SAQIB NISAR, J.

These appeals with the leave of this Court have a simple factual backdrop, in that, the land in question was originally owned by the predecessors-in-interest of the appellants. The Deputy Land Commissioner vide order dated 16-1-1978 discarded the plea of the declarants that a part of their/his holding has been gifted unto the appellants before the enforcement of the Land Reforms Act, 1977 (the Act), thus ordered the resumption of the land found in excess of the permissible limits. The declarant unsuccessfully challenged this order in appeal, claiming/reiterating that the land had been gifted to the appellants vide registered gift-deed/s dated 8-1-1977 i.e. a day before the enforcement of the Act which was promulgated on 9-1-1977 and, therefore, it (such land) cannot be considered to be a part of his holding calculable for the purposes of the surrender under the Act. The validity of the gifts was also not accepted by the Commissioner Lahore Division vide order dated 8-5-1982, however, it was held by the officer in the order that the said land is the part of a joint Khata, therefore, after the partition of the Khata, the choice be given to the owner/declarant as to which part he would like to retain and surrender pursuant to the Act. From the record it does not transpire if any further challenge was thrown by the owner/declarant (the predecessors-in-interest of the appellants) or the appellants as a donee before any forum, to the afore-stated orders. Be that so it may, on 10-8-1989 Qazalbash Waqf case was decided by this Court, whereby certain provisions of the Act were declared to be against the injunctions of Islam, and after about two years of this verdict, seemingly to seek benefit of the law laid down in the dictum, the writ petitions were filed by the appellants before the learned Lahore High Court, avowing about the validity of gifts in their favour and asserting that the land so gifted to them could not form part of the declarant's holding; that they were not heard in the matter by the land reform authorities at any stage, therefore, any order affecting their rights shall have no sanctity in law; and that pursuant to the above-mentioned order dated 8-5-1982 the partition of the Khata has not been effected, therefore, as no decisive step has been taken in the matter, the land in question cannot be resumed under the Act as per the law laid down in Qazalbash Waqf case supra. These petitions were dismissed by a Division Bench of the High Court vide judgment dated 21-3-2002 primarily holding that the case is not covered by the noted verdict. Instead of assailing the aforesaid decision before this Court, the appellants opted to seek review thereof, but remained unsuccessful which petitions (review petitions) have been dismissed through the impugned order.

2. Leave in these cases was granted on 29-1-2003 to mainly consider the effect of Qazalbash Waqf decision on the instant matters; about the validity of the gifts deeds dated 8-1-1977 claimed by the appellants in their favour; the effect of non-hearing the appellants (in the capacity of donees) in the hierarchy of the land reforms authority and on such account, the orders holding their gifts as invalid, whether shall have no binding on them, as void ab initio, on the principle of audi alteram partem.

3. Dr. A. Basit, learned counsel for the appellants has argued that the Act came into force on 9-1-1977, while the registered gift-deeds in favour of the appellants in relation to the land in question is dated 8-1-1977 and, therefore, such transactions being prior to the enforcement of law shall not be hit by section 6 of the Act. It is also submitted that according to the order passed by the Land Commissioner dated 8-5-1982 it was categorically held that the holding of the declarants is joint, it should be partitioned, the declarants be given an option to retain and surrender the land accordingly, only whereafter the possession of the surrendered land could be taken over. This as per the learned counsel was/is a decisive step, which has not been taken till date, as no partition has been conducted and the possession of the land is still with the appellants, thus in view of the law enunciated in Qazalbash Waqf supra, it (the land) cannot be now resumed.

4. Heard. As far as the first submission of the learned counsel is concerned, suffice it to say that prior to the Act, Land Reforms Ordinance II of 1977 (the Ordinance) was enforced on 5-1-1977. According to Section 6, thereof, it has been categorically stipulated as follows:-- "

6. Certain transfers void.

(1) The transfer of any land, and the creation of any right or interest in, or encumbrance on any land, made in any manner whatsoever in respect of any area, on or after the commencement of this Ordinance by any person holding immediately before that date an area exceeding his entitlement under section 3, 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. (2) Nothing in subsection (1) shall apply to any transfer of land or the creation of any right or interest in or encumbrance on any land left with a person after he has surrendered the land in excess to his entitlement under this Ordinance." The Ordinance according to the Article 89 of the Constitution of Islamic Republic of Pakistan 1973 was/is a valid piece of legislation and has the life of one hundred and twenty days. According to Article 89(2)(a) every Ordinance shall be laid before either of the two houses of the Parliament (see Article 89(2)(a)(iii) and in term of clause (3)(b) thereof, it shall (the Ordinance) be deemed to be a bill introduced in the house where it is being laid. During this period of one hundred and twenty days unless such Ordinance is repealed, and while the process of its passing as per Article 70 of the Constitution is in progress, it (Ordinance) shall for all intents and purposes be a valid and operative law, entailing all the legal incidents and consequences. It is in the above process/procedure that the Ordinance II of 1977 was made the Act of Parliament on 9-1-1977. The gift-deeds in question admittedly were executed/registered during the period when the Ordinance was in force and, therefore, it is under the Ordinance that the transaction of gifts were void as per Section 6 ibid. Resultantly, on the enforcement of the Act on 9-1-1977, the transactions which were void under the Ordinance, which culminated into an Act, cannot be held to be outside the purview of Section 6 of the Ordinance or the Act which are absolutely identical/similar provisions. Therefore, we have no hesitation to hold that the gifts claimed by the appellants in their favour ipso jure were void, thus, notwithstanding the grievance of the appellants that they were not heard by the concerned authorities in the matter, yet no right in law can be founded by the appellants on the basis of said transactions. It may however be pertinent to mention here, that in the noted appeal (Civil Appeal No.295 of 2003), the declarant/predecessor-in-interest of the appellants namely Muhammad Ali died during the pendency of the appeal before the Commissioner and the appellants pursued the matter but lost, thus their grouse qua non-hearing is baseless and unfounded.

5. For the submission founded on Qazalbash Waqf dictum, it may be mentioned that the proposition as to what can be construed to be a decisive step pursuant to case supra, came up for consideration before a five Members bench of this Court in Civil Appeals Nos.292 and 293 of 1976 etc. and it was held:-- "In the written arguments submitted in Appeals Nos.292, 293, 547, 848 and 139, reference has been made to the judgment of this Court in the case of Qazalbash Waqf v. Chief Land Commissioner (PLD 1990 SC 99) whereby the Shariat appellate Bench has declared certain provisions of the Regulation, particularly paragraphs Nos.7, 8, 9, 10, 13 and 14, to be repugnant to the injunctions of Islam. It is contended that in view of this judgment the gifts which were effected by paragraph 7 of the Regulation must now be treated to have been properly and validly made. This contention is without any merit. As pointed out in the judgment itself the declaration given therein was to take effect on 23-3-1990 and such provisions of the Regulation which were self-executory were not to be any manner affected thereby. In this context reference may be made to the observations of two of the learned Judges who delivered separate opinions in the aforementioned case. Thus, Muhammad Afzal Zullah, J. (as his lordship then was) observed:- "However, I am of the view that the decision of this Court shall not affect those cases in which any decisive step has been or is now taken in the ordinary normal course at any stage of the proceedings, in implementation of the provisions which would cease to have effect as a result of the Court order, prior to the date to be fixed therein." Similarly, Shafiur Rehman, J., observed: "As most of the provisions found repugnant to the Islam happen to be self-executory, they have of their own force taken effect, accomplished the object of the legislation leaving the mere implementation of it, to be completed on the strength of machinery provisions. Such self-executory provisions will remain unaffected by this decision. However, those provisions which have a prospective effect also and are not self-executory, shall get annulled from the date the decision declaring them repugnant to the injunction of Islam takes effect." It is to be noticed that by force of paragraph 7 of the Regulation itself all gifts, leaving aside those which were expressly saved, became void. The declaration submitted by the donors already stand scrutinized and the lands covered by the gifts have been treated as part of their holdings. Therefore, even if some of the appellants have yet not surrendered the excess land it would not make any difference for now it is a question of merely implementing the orders already passed by competent authorities. In the circumstances the appellants cannot take advantage of the judgment in the Qazalbash Waqf case."

6. Therefore the partition of the khata and physical handing over of the possession shall be of no much effect, as according to the land reform authorities it was finally adjudged that the declarants have to surrender specific units of the excess land, only for the reason that vide order dated 8-5-1982 it was subject to partition and the possession was to be given/taken over, after enabling the choice to the declarant to retain a part and to surrender the remaining in excess of his entitled under the law, would not mean that the decisive step was not taken in the matter. The provisions of the Act as has been held by the learned High Court in both the judgment dated 21-3-2002 (passed in writ jurisdiction) and also under the review are self-executory and, therefore, once the excess land of the declarant was so adjudged by the competent authorities resumed under the law, it for all intents and purposes was/is a matter covered by the rule of past and closed transaction, which cannot be reopened/annulled on the basis of the judgment in Qazalbash Waqf case.

7. In the light of the above, these appeals have no merits and are accordingly dismissed. MWA/M-51/SC Appeals dismissed.