1984 PLP 87 (SCMR)

Date of hearing: 18th May, 1983. MUHAMMAD AFZAL ZULLAH. J.‑This appeal through special leave of the Court is directed against judgment dated 10‑4‑1974, of the Lahore High Court whereby a constitutional petition arising out of a case under Land Reforms Regulation (M. L. R. 115) was dismissed. Although several points were raised in the High Court, the question raised for grant of leave to appeal and on which leave was granted is whether, a tube‑well, owned by the declarant exclusively or jointly with another but not installed on his own land would make him eligible for ‑the benefit visua lized by paragraph 8(2)(ii) of the Regulation. The High Court had' rendered the answer in the negative. The controversy has arisen in the following circumstances : "Under paragraph 8(2) of the Regulation additional 2000 Units Were allowed to an owner only if he had installed a tube‑well on his land. In exercise of the powers conferred on the Land Commission of the Punjab under para graph 4(8) of the Regulation, vide Punjab Land Commission's Notification No. DSH‑884‑72/ 2792‑LC(II), dated 12th of July, 1972, it was provided that the additional area equivalent to 2000 Produce Index Units on account of tube‑well, could be, retained by an owner under paragraph 8(2) of the Regulation (as amended), if the tube‑well of not less than 10 horse power owned by him is installed on his land. By means of another Notification No. DSH‑798/72/2328‑LC(II), dated 9th of June, 1972, issued by the Punjab Land Commissioner under paragraph 4(8) of the Regulation, it was provided :‑ "In exercise of the powers conferred on it under paragraph 4(8) of Martial' Law Regulation 115, as amended, the Punjab Land Com mission, with the previous approval of President, is pleased to direct that in case joint owners of a tractor/tube‑well the benefit of 2000 Produce Index Units shall be distributed in accordance with the recorded share in the tractor/tube‑well and in case there is no such recorded share, the joint owners shall be asked to establish their respective shares and the additional 2000 Produce Index Units shall be divided on that basis." The case of the appellant before us in nutshell is that she has installed a 16 horse power tube‑well in 1953 for the irrigation of her agricultural land: But its situation did not prove to be beneficial. She, therefore, shifted it and installed the same on the nearby land belonging to her son. She asserted that since then this tube‑well was jointly held by them. But the land Commission authorities have disallowed any additional land to be retained by the appellant as joint owner of the tube well on the ground 'that she was admittedly not the owner of the land on which it is installed. She challenged the validity of the orders passed by the Authorities through a writ petition. But a learned Judge of the High Court dismissed the same holding that the law does not contemplate additional area with reference to share in ‑the tube‑well which is not installed on the land of the declarant. Learned counsel for the appellant argued that the notification repro duced above had the effect of removing the condition in sub‑clause (ii) of para. 8(2) of the regulation that the tube‑well should be on the land of the declarant, because this rider is not repeated in the notification itself. The relevant provision of the regulation reads as follows :‑ Paragraph

8. Limits on individual holdings.(1)" ..(2) Not‑ withstanding the provisions of sub‑paragraph (1), an owner may retain, out of the area of land he was holding immediately before the commencement of this Regulation, such additional area, if any, which would bring the total area retained by him to the equivalent of fourteen thousand produce index units if on the 20th of Decem ber, 1971 . (i) .. (ii) there was installed on his land a tube-well of not less than ten horse power. (3) .. It is also necessary to reproduce here paragraph 4(8) of the regulation where under tae notification relied upon was issued: it reads :- "Paragraph 4(8): Where any matter is not provided for in this Regula tion, or any difficulty arises in giving effect to the purpose of this Regulation, a Commission may, with the approval or on the direc tion of the President, make such provisions in respect thereof as it thinks fit or as may be directed by the (Federal Government), and such order shall be deemed to form a part of this Regulation and have effect accordingly." There is force in the argument of the learned counsel that a notification issued under paragraph 4(8) of the regulation would be deemed to form part of the regulation and have effect accordingly. It being in the nature of a subordinate measure should, in order to have effect, be striate in accordance with the prescribed conditions. In this case nothing has bee observed by the High Court or pleaded from the respondents side that the conditions were not satisfied, therefore, the notification in question would form part of the regulation. However, while giving effect to the same, it will have to be seen that no violation is done to the regulation itself. Keeping the nature and scope of the notification in view and of court construing it only as a subordinate measure, the same shall have to be placed as an addition to and not in juxtaposition to sub‑clause (ii) of clause (2) of paragraph 8 of the regulation. Otherwise it might have the effect in this case, of substituting or partly repealing the substantive provision of the regulation, which it is clear was not the intention. Read in the foregoing context the only proper method of giving th intended effect to the notification in question would be to read it as a explanatory provision to sub‑clause (ii) of para. 8(2) of the regulation. So read and construed it clearly means that it will operate only within the purview of and under the conditions laid in the said sub‑clause. An for the said conditions to have effect it is not necessary that they are repeated in the notification itself as has been contended before us. Accordingly the main condition that the tube‑well concerned should be on the land of the declaring would have to be satisfied before the benefit is allowed under sub‑clause and or the notification. The same admittedly is not the case of the appellant, therefore, she could not be allowed any relief in. this behalf, by the High Court. This appeal accordingly fails and is dismissed. But there that be no order as to costs. M. Z. M. Appeal dismissed.