2001 PLP 1738 (YLR)

Setting aside of void order

Limitation-- Where the order was void, and coram non judice, no limitation commenced against such order

[Limitation]. Khuda Bakhsh's case PLD 1976 SC 208; Hussain Bakhsh and others' case PLD 1969 Lah. 1039; Nazar Hussain's case PLD 1974 Lah. 434 and Muhammad Mashikh-ul Zaman's case PLD 1992 SC 825 ref Sh. Abdul Aziz for Petitioners. We intend to decide the following writ petitions by one consolidated order of the similar facts which arises out of the same order:-- Writ Petition No.6100 of 2001, Writ Petition No.6101 of 2001, Writ Petition No.6102 of 2001, Writ Petition No.6103 of 2001, Writ Petition No.6104 of 2001, Writ Petition No.6105 of 2001, Writ Petition No.6106 of 2001.

2. Brief facts out of which the aforesaid writ petitions arise are that Nawabzada Saddaqat Ali Khan/petitioner No.1, owned and possessed the land in Haiderabad, Sakhar, Gujranwala, Sheikhupura District. The land allotted in Haiderabad in village Tando Allah Yar, under the Interim Relief Scheme, in lieu of the land abandoned by him in non-agreed area in India. The West Pakistan Land Reforms Regulation (M.L.R.64 of 1959), came into force on 7th day of February, 1959. Petitioner No.1 was declarant under the aforesaid regulation. He retained the said land in district Haiderabad, and surrendered the excess land equivalent to 7,432 P.I.Us. in village Bakhi, Tehsil and District Sheikhupura. The temporary allotment in favour of petitioner No. 1, qua the land situated in the aforesaid village in Haiderabad was cancelled by the Rehabilitation Department for non-production of entitlement certificate. Due to the aforesaid cancellation order he was left with less land than the ceiling prescribed under the aforesaid M.L.R. Petitioner No.1 submitted an application for the restoration of his land surrendered by him in Sheikhupura in said village before the Land Commission, which was decided by the Land Commission, in its meeting held by 2-8-1963. The Land Commission observed that since the lend surrendered by Nawabzada Sadaqat Ali Khan in the Sheikhupura District had been disposed of, it would not be fair to dislocate the sitting tenants and small landowners. The Land Commission further decided vide order, dated 23-9-1963, that Nawabzada should be allowed to get available untenanted land elsewhere to make up the deficiency and the tenants should not be disturbed. Petitioner No. 1 filed an application before the Punjab Land Commission, who vide letter, dated 30-81967, called for report from the Deputy Commissioner/Deputy Land Commissioner, Okara qua the availability of resumed land in Chak No.21/D, Tehsil and District Sheikhupura. The D.C./Deputy Land Commissioner, submitted report to the Commission that the resumed land in the said Chak was available for the allotment. The Land Commission vide order, dated 9-6-1998, allotted the land in question' to petitioner No.1 measuring 709 Kanals, 14 Marlas, equivalent to 1023 produce index unit in lieu of land resumed from him in village Bakhi, Tehsil and District Sheikhupura under the West Land Reforms Regulation, 1959. The private respondent being aggrieved filed revision petitions before the Member, Federal Land Commission, Islamabad, who accepted the same vide consolidated order, dated 28-3-2001. Hence the present writ petitions.

3. Learned, counsel for the petitioner submits that the revision petitions were filed by private respondents, on 2-10-1999, which were highly time-barred. The duty cast upon respondent No. 1 to dismiss the revision petition, as time-barred by virtue of section 3 of the Limitation Act. In support of his contention, he has relied upon Hakim Muhammad Bootta's case PLD 1985 SC 153; Pakistan's Railways case PLD 1989 SC

864. He further submits that the private respondents have no locus standi to file revision petitions against the order of the Land Commission dated 9-6-1998. He further submits that private respondents are not the sitting tenants over the land-in question. He further submits that vested right accrued to the petitioner vide order, dated 23-9-1963 and 2-8-1963 of the Commission respectively. Respondent No. 1 was erred in law to set aside the order of the Punjab Land Commission dated 9-6-1998. He further submits that in similar circumstances, an area of 50 Kanals per Marla was allotted to petitioner No.1 in village Rakh Kamboh, Tehsil and District Lahore in pursuance of the order, dated 28-5-1989, passed by the Deputy Land Commission. The aforesaid order was challenged in revision by Major Zulfiqar Ali, before the Federal Land Commission, on the ground that he was legible for its allotment under paragraph No. 18(3) M. L.R.115, which was dismissed by the Member, Federal Land Commission vide order, dated 16-5-1991. Major Zulfiqar Ali being aggrieved filed Writ Petition No.5071 of 1991, which was also dismissed by the Division Bench of this Court vide order, dated 16-9-1991. Thereafter, his legal heirs filed C.P. No. 1039/L of 1999, before the Honourable Supreme Court, which was also dismissed vide order, dated 14-6-1992. The impugned order was passed by respondent No. 1 in violation of the law laid down in the aforesaid judgments. He further submits that the impugned order is not sustainable in the eyes of law. He further submits that respondent No. 1 decided the case in violation of paragraph No.32 of the aforesaid regulation. He summed up his arguments that the Punjab Land Commission, was justified to allot the land in question to the petitioner No. 1 for the public purpose. The property in question was allotted to petitioner No. 1 for the public purpose as the land surrendered by him was allotted to sitting tenant. The word public purpose has interpreted by the Full Bench of this Court Allah Ditta v. Province of Punjab PLD 1997 Lah. 499.

4. We have considered the contentions of the learned counsel for the petitioners and perused the record ourselves. It is better and appropriate to reproduce the paragraph No. 18 to resolve the controversy between the parties:-- "

18. Grant of land to tenants.

(1) Land which vests in Government under the provisions of paragraph 13 or paragraph 14, shall subject to the other provisions of this paragraph, be granted free of charge to the tenants who are shown in the Revenue Records to be in cultivating possession of it in Kharif, 1971 and Rabi 1971-72 or in the case of land resting in Government on the basis of a declaration made pursuant to clause (ee) of sub-paragraph (1) of paragraph 12, to the tenant who is shown in the Revenue Records to be in cultivating possession of it in the year immediately preceding such declaration. Provided that no land shall be granted to tenants who but for the making of this Regulation, would have been entitled to inherit land from any of the persons from whom land has been resumed under this Regulation. (2) Where a tenant who is entitled to the grant of land under sub-paragraph (1) already owns any land, he shall be granted only so much land under the said sub-paragraph which together with the land already owned by him equals an area of a subsistence holding. (3) Where any land is not shown in the 'Revenue Record to be in cultivating possession of any tenant, during Kharif, 1971 and Rabi, 1971-72, it shall be granted to such tenant or other person, owning less than a subsistence holding and on such terms and conditions, as the Government may determine; Provided, that Government may utilize any such land for such public purpose as it may deem fit. (4) Nothing in this paragraph shall apply to orchards or to any State land, granted on installments where any installment in respect of such land remains unpaid." From the reading of the aforesaid paragraph reveals that the word public: purpose is mentioned in proviso of sub para.(3) of paragraph

18. The word public purpose must be read keeping in view the aforesaid clause of para.

18. The provisions of M. L.R.115, did not allow the Commission to allot the land to a persons, whose land was surrendered under M.L.R.64. The; commission is only authorized to allot the resumed land to the tenant and utilized the same for any public purpose; to allot the land in question to petition No.1, does not fall under phrase public purpose. Petitioner No. 1 is a landlord and is not a poor person. The: purpose and object of the land reforms to give the resumed land to the landless purpose. In case, the interpretation of the petitioner's counsel is accepted, then it is against the spirit and object of the land reforms regulation. It is settled principle of interpretation that regulation must be read as a whole organic and not to read paragraph 18(3) proviso independently. In arriving to this conclusion, we are fortified by the law laid down by the Honourable Supreme Court in Hakim Ali's case PLD 1992 SC 595, Mian Muhammad Nawaz Sharif's case PLD 1973 SC 473, PLD 1957 SC 219 (a reference by the President of Pakistan under Article 162 of the Constitution 6f Islamic Republic of Pakistan). The ratio of the aforesaid judgments is that the Statute/M.L.R. has to be read as whole and that it is the duty of the Court to have a recourse to the whole instrument in order to ascertain the true intent and meaning of any particular provision. And where any apparent repugnancy appears to exist between its different provisions, the Court should harmonizse them, if possible. It is settled principle of law that preamble of a statute is a key to understand the statute. It is better and appropriate to reproduce the preamble:-- "Where Islam enjoins equitable distribution of wealth and economic powers and abhors their concentration in a few hands: And whereas, it is in the supreme national interest to improve the economic well-being of the peasantry by making agriculture a profitable vacation;" This rule of interpretation does appear to have been given in the impugned order by respondent No.1 in this view of the matter, the judgment relied upon by the learned counsel for the petitioner in Allah Ditta's case (supra) PLD 1997 Lah. 499, qua interpretation of word public purpose, under the provisions of Land Acquisition Act, has no relevance to resolve the present controversy and is distinguished on facts and law. It is also admitted fact that no proceeding whatsoever has been pending at the time of repeal of M.L.R. 64 of 1959, therefore, the petitioners are not entitled to get the benefit of para.32 of M.L.R.

115. In arriving to this conclusion, we are fortified by the judgment of the D.B. of this Court in Amir Abdullah Rokhri's case 1992 CLC 1919. The Commission had passed the order in favour of petitioner No.1 on 2-8-1963 and 23-9-1963, which was not implemented till 1998 as the petitioner No. 1 did not accept the land proposed by the Commission. The order was passed by the Commission in favour of the petitioner on 29-6-1998, under the provisions of Land Reforms Regulation 115 of 1972, proceedings under M.L.R. 115 of 1972, had abated by virtue of section 25 of the Land Reforms Act, 1977. Even if any proceedings were pending before the promulgation of the Land Reforms Act, 1997. In arriving to this conclusion, we are fortified by Salah-ud-Din Qureshi v. Federal Land Commission etc. 1992 CLC 2362, Federal Land Commission through its Senior Member v. Sher Muhammad, etc. PLD 1990 SC 626, Saleh-ud-Din's case 1992 CLC 2362 and B.G.G.A. (Punjab) Ltd., Khanewal 1992 MLD 1639.

5. It is admitted fact that the Land Commission passed the order in favour of petitioner No.1 vide order, dated 9-6-1998, without notice to the private respondent, therefore, the judgment cited by the learned counsel for \the petitioner qua the proposition of law that revision petition was dismissed on account of limitation on the basis of law laid down by the Honourable Supreme Court in Pakistan Railways' case 1989 SCMR 818 (supra), Haji Muhammad Boota's case PLD 1985 SC 153 are distinguished on facts and law, as in the cited case, aggrieved persons were party in the proceedings. Since the impugned order of the Commission dated 9-6-1998, was void, corum non judice, ash such no limitation commenced against such order. In arriving to this conclusion, we are fortified by the following judgments: -- Khuda Bakhsh's case PLD 1976 SC 208, Hussain Bakhsh and others' case PLD 1969 Lah. 1039, Nazar Hussain's case PLD 1974 Lah. 434 and Muhammad Mashikh-ul Zaman's case PLD 1992 SC

825. The order of the member, dated 16-5-1991 and unreported judgment of the D.B. of this Court in Writ Petition No.5071 of 19.96, and order, dated 14-6-1992, in C.P. No.1039/L of 1991, do not decide the present question of law, therefore, the aforesaid citations are not relevant to decide the present controversy and are distinguished on facts and law. In view of what has discussed above, these petitions have no force and are II dismissed. Q.M.H./M.A.K./S-248/L Petition dismissed.