P L D 1971 Supreme Court 393 (PLP)

On the 13th of May 1959, the Deputy Land Commissioner, Multan, took objection to the validity of the mutations Nos. 60 and 61, mentioned above, and recommended their cancellation on the ground that they were hit by the Regulation, as they were effected after the abrogation of the 1956-Constitution and after the enforcement of the Regulation, which had placed a ceiling on individual ownership of land, and had declared as void all the transfers of lands made after the 8th of October 1958. The matter was examined by Mr. A. M. Leghari, the then Land Commissioner, who upheld. the mutations, as, according to him, the transactions in question did not contravene the provisions of the Regulation. Later in the year 1963, at the instance of Ch. Nabi Ahmad, Land Commissioner (touring and Inspection), the case was reopened and laid before Mr. I. U. Khan, the Chief Land Commissioner, who, by his order dated the 18th of June 1953, revised the decision of Mr. Leghari suo motu and held that the gift was valid only to the extent of the share of Mst. Hayat Bibi but invalid as regards the rest of the donees. Soofi Ata Muhammad challenged the order of Mr. I. U. Khan in the writ jurisdiction of the High Court. He died during the pendency of the proceedings, which were then continued by his heirs, the present respondents. The High Court accepted the writ petition on -the sole ground that the orders of Mr. A. M. Leghari, arming the mutations, were made by him as a delegatee of the Land Commission, which could not be revised by Mr. I. U. Khan, the Chief Land Commissioner, who like Mr. A. M. Leghari, was also a dele gatee of the Commission, holding concurrent jurisdiction and possessing the same powers as Mr. Leghari, without any supra authority to revise the latter's orders. It was held that the ordinary incident of delegated authority is that if once it is competently exercised by the delegatee, it gets exhausted and there is no power left in the delegator to exercise the same authority in a different manner. If both were allowed to exercise their co-ordinate powers independently of each other simulta neously or successively, the possibility of a conflict between the two, leading to an insoluble contradiction is unavoidable. In reaching its conclusion the High Court placed reliance on a decision of this Court reported as Jalal Din v. Sh. Muhammad Rafiq (PLD 1965 SC 261). That was a case under the Displaced Persons Compensation and Rehabilitation Act (XXVIII, of 1958)section 31 of which provided that, subject to the provisions of the Act, the Chief Settlement Commis sioner may delegate his powers to the subordinate officers in the hierarchy of settlement organisation. Such a delegation was made by him in favour of his subordinates for the exercise of powers under section 2 (4) of the aforesaid Act, whereunder the Chief Settlement Commissioner was empowered in certain circumstances to declare a house as consisting of more than one residential unit if it was occupied by different persons in different portions. In the cited case, the Deputy Settlement Commissioner had acted under his delegated authority, and it was held by -this Court that his decision, as a delegatee, was not subject to appeal or revision, as provided in the Act, which would have been available in case he had acted in the exercise of his ordinary powers otherwise than as a delegatee of the Chief Settlement Commissioner. As regards the words of limitation in section 31 (2) of the Act, namely, "subject to the provisions of this Act", it was held that "these words apparently related to the powers of the Chief Settlement commissioner to delegate and not to the exercise of the delegated powers by the delegatee". After the judgment of this Court in Jalal Din's case, the President of Pakistan, on the 2nd of June 1965, promulgated the Displaced Persons Laws Amendment Ordinance, 1965 (Ordinance XVIII of 1965), whereby a new subsection (3) was added to section 31 of the Displaced Persons (Compensation and Rehabilitation) Act to the following effect:- "(3) Any order passed by a Settlement Commissioner or an Additional, Deputy or Assistant Settlement Commissioner in exercise of any power delegated to him under subsection (2) shall be, and be deemed always to have been, subject to the provisions. of Chapter VI in the same manner and to the same extent as any other order passed by a Settlement Commissioner, Additional, Deputy or Assistant Settlement Commissioner, as the case may be, is so subject." A validation clause was also introduced by this Ordinance in section 3 as follows: "

3. Validation.-Anything done, action taken, order passed, rule made or notification issued, or purporting to have been done, taken, passed, made or issued; under any of the aforesaid Acts, before the promulgation of this Ordinance, shall be deemed to have been done, taken, passed, made or issued under such Act as amended by this Ordinance, and shall have and shall be deemed always to have had effect accordingly." It is obvious that this legislation was introduced to neutralise the effect of the judgment of this Court in Jalal Din's case. The provisions in the Regulation bearing on the point of delegation of authority are almost parallel to those in the . Dis placed Persons (Compensation and Rehabilitation) Act, as cited above. Under para. 4 of the Regulation, the West Pakistan Land Commission, with the Governor of West Pakistan as 'its ex officio Chairman and 5 persons appointed by him as its members, was set up for carrying out the purposes of the Regulation. The Commission was authorised to nominate one of its members as the Chief Land Commissioner, who, subject to the directions given by the Commission from time to time, was responsible for the implementation of the Regulation. The functions to be performed by the Commission are described in several paragraphs of the Regulation, and para. 5 thereof authorises the Commission to delegate all or any of those functions to any of its members or officers or authorities subordinate to it. This paragraph reads as follows:- "Delegation of powers.-The Commission may, by notification in the official Gazette, direct that the powers exercisable by it under this Regulation, may, subject to such conditions, if any, as may be specified in the notification, be exercised also by any of its members or officers or authorities subordinate to it: Provided that the Commission shall not delegate its powers under sub-paragraph 2 of paragraph 7 to an officer below the rank of a Commissioner of a Division." By Notification No. 48/59-30-L.C., dated the 17th of February 1959, the Commission set up its hierarchy of different officers described as Land Commissioners, Deputy Land Commissioners, Assistant and Sub-Assistant Land Commis sioners authorising them to exercise their powers as such under the Regulation within their respective jurisdictions. The Chief Land Commissioner was placed at the apex of this hierarchy with powers of general control and superintendence over all the other officers. By Notification No. 49/59-31-L.C. of the same date, the Commission, in exercise of the powers conferred on it under paragraph 5 ibid, delegated several of its powers to its functionaries, as mentioned against each one of them. The one which is relevant to the case in hand was delegated as follows:- (ii) Power of deciding whether any transfer or other trans action is or is not void, vesting in the Commission under paragraph 7, Part III of the West Pakistan Land Reforms Regulation No.

64. Chief Land Commissioner and Land Commissioner (Commissioner) of Divi sion only. On a plain reading of this notification, it seems clear that the powers under para. 7, Part III of the Regulation to decide whether a transfer is or is not void, the Commission had delegated, without reservation, concurrent and co-ordinate powers both to the Chief Land Commissioner and the Land Commissioner, and thus any element of control or subordina tion of the latter to the former in this respect was specifically eliminated. In the earlier Notification No. 48 ibid, the power of control and superintendence of the Chief Land Commissioner over the subordinate officers, including the Land Commissioner was retained, limiting it only to the exercise of the ordinary powers of those officers in their respective jurisdictions and not to the powers specially exercisable by them as delegatees of the Commission. Mr. A. M. Leghari, in his capacity as the Land Commis sioner, ratified the gifts in dispute in his delegated authority from the Commission with which he was duly invested by the aforesaid notification, and his orders must be deemed to have been passed by the Commission itself. Under the law as it stood, there was thus no question of those orders being amenable to appeal or revision before the Chief Land Commissioner, whose powers, as an equal delegatee, were at par in this behalf with those of the Land Commissioner. The learned Judges of the Division Bench in the High Court, on the view of the law as it obtained at the time when they decided the writ petition, were, therefore, quite right in holding, following the judgment of this Court in Jalal Din's case, that Mr. I. U. Khan had acted wholly outside his authority and without jurisdiction in upsetting the orders of Mr. Leghari, who had made the orders in this case in the exercise of his jurisdiction as the delegatee of the Land Commission. The legal position was the same up to the time that we heard arguments in this appeal and reserved judgment. How ever, before the judgment could be written and announced, the Governor of West Pakistan, on the 30th of June 1970, promulgated an Ordinance No. XXVI of 1970, called the West Pakistan Land Reforms Regulation (Amendment) Ordinance, 1970 which is on the same lines as Ordinance No. XVIII of 1965, referred to above. Section 2 of this amending Ordinance pro vides as follows "

2. Amendment of paragraph S of the West Pakistan Land Reforms Regulation.-In the West Pakistan Land-Reforms Regu lation, in paragraph 5, the full-stop appearing at the end of the proviso shall be replaced by a colon and thereafter the following further proviso shall be added and it shall be deemed always to have been added. .Provided further that any order passed by a Land Com missioner or a Deputy or Assistant or Sub-Assistant Land Commissioner, in exercise of any power delegated to him under this Regulation shall be and be deemed always to have been subject to appeal, review or revision, in the same manner, and to the same extent as any other order passed by a Land Commissioner or a Deputy or Assistant or Sub-Assistant Land Commissioner, as the case may be, is so subject'." As a consequence of this amending provision, we issued a notice to the learned counsel for the parties to re-hear this appeal, to consider the impact of this amendment on the present case, as also to hear fresh arguments on merits. The learned counsel for the appellants has sought to argue that the amending Ordinance does not have a retrospective operation and will not affect the present case, because it does not contain a validation clause, like the one in Ordinance No. XVIII of 1965. This argument is without any substance, as the omission of the validation clause does not make any difference, which was done in the case of Ordinance XVIII of 1965 by way of abundant caution. The words in section 2 of the amending Ordinance of 1970 to the effect that "the following further a proviso shall be added, and it shall be deemed always to have been added, leave no room for doubt that it was intended to be retrospective in its operation, and the present case falls in its purview. In fact, as admitted by the learned counsel for the appellants, this case- furnished a cue to the authori ties to introduce this amending and curative piece of legis lation, namely, the West Pakistan Land Reforms Regulation (Amendment) Ordinance No. XXVI of 1970. The introduction of this amendment with retrospective effect neutralises the judgment of the High Court passed in this case with the result that the order of Mr. I. U. Khan made in exercise of his revisional authority, reversing that of Mr. A. M. Leghari, Land Commissioner, was competently made in exercise of his revisional jurisdiction as the Chief Land Commissioner, West Pakistan. This brings us to the merits of the order passed by Mr. I. U. Khan. It is clear that he has not doubted the genuineness of the gifts in question and has partially upheld them so far as the share of the wife is concerned. But he has rejected them qua the share of the other donees, namely, the son and the two widow daughters of Soofi Ata Muhammad, for the reason that the transactions of gift in their favour were not completed before the enforcement of the Martial Law .Regulation by the delivery of possession of the gifted property to them. To quote his own words "so far as the wife is concerned, the law and the rules are quite clear that when a gift is made by a husband in favour of his wife, the change of possession is not necessary for the completion of the gift. In the case of wife, the gifts have, therefore, to be assumed to be complete on the day they were made. So far as the daughters are concerned, the learned counsel has argued that they were living with the donor, and that change of possession was not necessary in their case also, and two affidavits were also filed in support thereof, but these affidavits being in the nature of admission in favour of the person making it, have no eviden tiary value, and I am afraid I cannot hold that in. the case of these two daughters, the position was such that the condition about the change of possession was not necessary for the completion of the gifts.'.' Similarly, in the case of son, Mr. I. U. Khan held that "it was not proved that change of possession had taken place in his favour after the mutation of gift Was attested." The learned counsel for the respondents has strenuously argued that in reaching his conclusion Mr. I. U. Khan has not correctly appreciated the legal position and has ignored certain salutary facts, which prove beyond doubt that the gifts in question were valid and complete in all respects. The intention of the donor to make these gifts without any reservation is absolutely clear. In fact, the gifts were made on a sequal to the previous gifts to remove the disparity in the share that had fallen to the lot of Nasrullah Khan, respondent. It is pointed out that the donor was in a fiduciary capacity so far as the two widowed daughters are concerned, who were living with him, and there was no necessity under the Muslim Law of gifts, for delivery of the physical possession of the gifted property to them. It is maintained that they were in the same position as the wife, in whose favour the gift has been upheld by Mr. I. U. Khan. It is further pointed out that there was abundant evidence on the record to prove that possession of the gifted lands had in fact been given to the donees, who had started exercising full right of ownership thereafter, and that this evidence has not been duly considered in the impugned order of Mr. I. U. Khan. The point that really required adjudication in this connection was whether the donor had not manifested an irrevocable intention to make the disputed gifts in favour of the donees, who had, in turn, taken control of the property thereafter as owners thereof. It seems that the relevant revenue records pertaining to the lands in dispute, which were prepared subsequent to the gift mutations, were not examined to determine the question of possession in relation to the validity of the gifts in question. . As the correct legal position with regard to these gifts needs to be examined in the light of all the evidence and the cir cumstances surrounding these gifts, including the factum of possession and exercise of the rights of ownership, as alleged by C the respondents, we think it is a fit case, which should be remanded for a fresh hearing and decision by the Chief Land Commissioner,, and we order accordingly. The parties shall bear their own costs of this appeal. g. B. A. Order accordingly.