P L D 1978 Karachi 919 (PLP)

ABDUL KADIR SHAIKH, C J.‑--By this petition under Article 199 of the Constitution, Mir Haji Ghulam Murtaza Khan Talpur, petitioner 1, and his son, Mir Ghulam Abid Khan Talpur, petitioner 2, seek to challenge the order of the Chairman, Federal Land Commission dated the 3rd July 1974, passed by him in exercise of suo motu revisional jurisdiction under section 29 of the Land Reforms Regulation, 1972. By this order, learned Chairman set aside the order of the Land Commissioner, Sind, dated the 27th December 1972, and while holding that the transfer of agricultural and measuring 338.16 acres made by the first petitioner in favour of the second petitioner was void, directed that the area equivalent to 11754 P. I. Units be surrendered by them. In support of the petition, Mr. A. K. Brohi submitted, inter‑alia, that the learned Chairman, Federal Land Commission was not competent, by himself, to exercise suo motu revisional powers under paragraph 29 of the Regulation as this power is vested in the "Chairman and the Members" of the Federal Land Commission, and not in the "Chairman" singly, or "a Member" by himself. Since this is a crucial plea and it has been raised in several constitutional petitions, we heard the learned counsel for the parties on this point, in the first instance. Mr. A. K. Brohi explained his submission by pointing out that the Land Reforms Regulation, 1972, in its original form, conferred upon the President, or any person authorised by him in this behalf, the revisional powers to call for, of his own motion or otherwise, the record of any case or proceedings tinder the Regulation, and pass such orders in relation thereto as he may think fit. The original paragraph 29 was substituted by the Land Reforms (Amendment) Act, 1973 and now it reads as follows :‑-- "

29. The Federal Government, or any person authorised by it in that behalf, may at any time, of its or his own motion or otherwise, call for the record of any case or proceedings under this Regulation which is pending or in which a Commission or any other authority appointed under this Regulation, other than the Federal Land Commission constituted under paragraph 4‑A, has passed an order, for the purpose of satisfying itself or himself about the correctness, legality or propriety of such an order, and may pass such order in relation thereto as the Federal Government or, as the case may be, such person thinks fit;-- Provided that the Federal Government may, from time to time specify the cases or class of cases in which it desires to pass final orders; Provided further that no order shall be passed under this paragraph revising or modifying an order affecting any person unless such person has been afforded an opportunity of being heard; Provided further that the record of any case or proceedings in which a Commission or other authority has passed an order shall not be called for under this paragraph by the Federal Government or the person authorised by it‑‑ (a) of its or, his own motion, after the 14th day of August 1974, or (b) on the application of any aggrieved person made after the expiration of sixty days from the date of such order or from the enactment of the Land Reforms (Amendment) Act, 1973, whichever is later, excluding the time requisite for obtaining a copy of such order." So far as the set up of the Land Commission is concerned, the Regulation, as originally enacted, envisaged a Land Commission for each Province, and not a Federal Land Commission. The Federal Land Commission was set up later under the newly added .paragraph 4‑A of the Land Reforms (Amendment) Act, 1973 which reads as follows:‑ "4‑A. Constitution of Federal Land Commission, etc.‑(1) For the purposes of this Regulation, there shall be constituted a Commis sion to be known as the Federal Land Commission; consisting of a Federal Minister nominated by the Federal Government, who shall be its Chairman, and not more than three members to be appointed by the Federal Government. (2) The Federal Land Commission shall exercise and perform all such powers and functions as may be necessary for the implementation of this Regulation throughout the areas to which it extends and shall, in particular :‑ (i) Assist the Federal Government in deciding any dispute or difference referred to in subparagraph (7) of paragraph 4 and in giving any approval or direction under sub‑paragraph (8) of that paragraph ; (ii) assist the Federal Government in the exercise of its revisional powers under paragraph 29 ; (iii) co‑ordinate the work of the different Commissions to ensure that a uniform policy is followed in all the Provinces in implementing the provisions of this Regulation, and (iv) lay down general guideline to be observed by the Commissions in carrying out their duties and functions under this Regulation and issue from time to time such instructions as may be considered necessary. (3) The Federal Land Commission may make rules to regulate its procedure and appoint its own officers and servants and confer powers upon, and assign duties to them. (4) The Federal Land Commission may direct that the powers exerciseable by it under this paragraph may, subject to such conditions, if any, as may be specified by it, be exercised also by any of its members or officers empowered by it in this behalf." It would be seen from above that the Federal Land Commission is to consist of a Federal Minister and the Members, not more than three in number, to be appointed by the Federal Government, and the task entrusted to the Federal Land Commission is to implement the provisions of the Regulation, and one of the functions assigned to it is to assist the Federal Government in the exercise of its revisional powers under paragraph

29. The Federal Land Commission is authorised to make rules to regulate its procedure and appoint its own officers and servants and confer powers upon, and assign duties, to them. It is also open to the Federal Land Commission to direct that the powers exerciseable 'by it under paragraph 4‑A may be exercised by any of its members or officers empowered by it in this behalf. The validity of the impugned order passed by the Chairman, Federal Land Commission is sought to be based on the Notification issued by the Federal Government, in the Cabinet Division of the Cabinet Secretariat under No. 7/18/72/Cord. 1, dated 23rd October 1973, which r: ads as follows;-- "in exercise of the powers conferred under paragraph 29 of the Land Reforms Regulation 1972 the Federal Government is pleased to authorise the Chairman and Members of the Federal Land Commission for the purpose of the said paragraph

29. The precise question for consideration is whether by this Notification, the Federal Government intended to authorise "the Chairman", by himself, to exercise the revisional powers conferred upon it by paragraph 29 of the Regulation. It is submitted the authorisation envisaged by the Notification is to "the Chairman and Members" of the Federal Land Commission, and not to "the Chairman", by himself, or to each "Member" singly. At this stage it may be mentioned that the Federal Land Commission Rules, 1974 which were framed by the Federal Land Commission in exercise of the powers under sub‑paragraph (3) of paragraph 4‑A of the Land Reforms Regulation, 1972 do authorise the Chairman of the Federal Land Commission to deal with and dispose of the Revision petitions under paragraph 29, by himself; indeed rule 3(5) requires that the distribution of revision petitions for disposal will be made by the Chairman. Sub‑rules (6) and (7) are also relevant in this connection and these are, therefore, reproduced hereunder;

"3.‑(6) The Chairman may of his own motion or otherwise, at any stage, for reasons to be recorded in writing, transfer any case pending before a Member, to himself or to any other Member and the Chairman or Member to whom the case is transferred may proceed with it from the stage at which it was transferred to him. (7) The Chairman or a Member may suspend, for the reasons to be recorded, any order or proceedings of a case of which the record has been called for under paragraph 29 of the Regulation." In support of his argument, Mr. A. K. Brohi highlighted the difference between the functions of the Federal Land Commission as envisaged by paragraph 4‑A and the one assigned by the authorisation made by the Notification 23rd October 1973, under the provisions of paragraph

29. This difference which according to Mr. A. K. Brohi underlines his argument, lies in the fact that whereas in paragraph 4‑A (2)(ii) the Federal Land Commission is merely to "assist the Federal Government in the exercise of its revisional powers under paragraph 29"; on the other hand, by the authorisation made under Notification dated the 23rd October 1973, the entire contents of the revisional power which is reserve) to the Federal Government is vested in the Chairman and Members of the Federal Land Commission. In this behalf learned counsel submitted that the exercise of revisional power is not envisaged in the provisions of paragraph 4‑A, and the Federal Land Commission, therefore, cannot assume to itself the rule making power under the authority of sub‑paragraph 3, or sub‑paragraph 4, and to make provisions governing the power exerciseable by the authorisation made by the Federal Government under the provisions of paragraph 29 of the Regulation. According to Mr. A. K. Brohi the "authorisation" contemplated by paragraph 29 is at par with what the word "delegation" connotes, and since a joint authority has been vested by the Notification dated the 23rd October 1973, in the "Chairman and Members" of the Federal Land Commis sion, there is no scope for further delegation in view of the well recognized maxim "delegatus non potest delegate". Learned Advocate‑General, on the other hand, submitted that the "authorisation" made under the Notification dated 23rd October 1973, clearly spells out that the Chairman also has been empowered to exercise revisional jurisdiction by himself. According to him, the expression "the Chairman and Members" of the Federal Land Commission is to be interpreted as to mean the "Chairman or any of the Members" of the Federal Land Commis sion. Learned Advocate‑General also sought to rely upon the provisions of the Federal Land Commission Rules, 1974 by which the Chairman has been authorised to distribute the Revision petitions among the Members and also to transfer any case pending before a Member, to himself, or to any other Member. So far as reference to the Federal Land Commission Rules, 1974, is concerned, Mr. A. K. Brohi pointed out that these were made after the impugned order was passed, on 25th July 1974, and these are therefore totally irrelevant, but even otherwise the Rules being beyond the scope of the authority vested in the Federal Land Commission are ultra wires on that ground. There is great force in the contention raised by Mr. A. K. Brohi that the Federal Land Commission Rules 1974 in so far as these concern the revisional powers envisaged by paragraph 29 of the Regulation are ultra wires. The authority for framing these rules is contained in sub‑paragraphs (3) and (4) of paragraph 4‑A of the Land Reforms Regulation, 1972 which empower the Federal Land Commission to make rules to regulate its procedure and appoint its own officers and servants and confer upon and assign duties to them, and also authorise the Federal Land Commission to direct that the powers exerciseable by it under this paragraph may be exercised also by any of its Members or officers empowered by it in this behalf. The power of issuing directions and making the rules conferred by these provisions is clearly limited to those powers that are conferred upon the Federal Land Commission under the provisions of paragraph 4‑A. Mr A. K. Brohi is very right in saying that the function of the Federal Land Commission as envisaged by paragraph 4‑A is to exercise and perform all such powers and functions as may be necessary for the implementation of the Regulation and these also include assistance to be given to the Federal A Government in exercise of its revisional powers under paragraph 29, but this does not mean that the power to exercise the revisional powers itself is also included. The exercise of revisional power contained in paragraph 29 is essentially reserved to the Federal Government, but it can also be exercised under the authority of the Federal Government by any other person. The exercise of the revisional power under paragraph 29 is not envisaged by the contents of paragraph 4‑A, and neither under sub‑paragraph (3) nor under sub‑paragraph (4) of paragraph 4‑A can the Federal Land Commission, therefore, assume to itself the rule‑making authority governing the revisional power exerciseable by it under the authority granted by the Federal Government under paragraph 29 of the Regulation. ‑ There can, therefore, be no escape from the conclusion that the provisions of the Federal Land Commission Rules, 1974 can furnish no legal basis for the validity of the impugned order passed by the Chairman, Federal Land Commission, and its validity must be spelled out only from the language of the Notification dated 23rd October 1973. By this Notification, authorisation has been made in favour of "the Chairman and Members" of the Federal Land Commission, and. the question, therefore, is whether the power exerciseable by "the Chairman and Members" can be exercised by the Chairman or a Member singly, or jointly by "the Chairman and Members". The answer depends upon the interpretation that is to be placed on the word "and" ; in other words, the question is whether the word "and" is used in conjunctive or disjunctive sense. The governing rule in all such cases is to carry out the intention of the Legislature and in doing so it is occasionally found necessary to read the conjunction "or" and "and", one for the other, depending on the consequences intended by the Legislature. The golden rule of interpratation is that every word must be given its true natural meaning, and this principle is not to be departed from, unless it is found necessary in order t carry out the intention of the Legislature. Lord Denning, M. R. in the case reported as (1971) 1 A E R 524 while considering whether the word "or' should be given the ordinary dictionary meaning, emphasised the principle that the natural meaning is to be given to this word, and quoted with approval the following observation of George Jessel M. R. in Morgan v. Thomas ((1882) 9 Q B D 643) at pages 645‑646; "You will find it is said in some cases that "or" means "and" ; but "or" never does mean "and" ; unless there is a context which shows that it is used for "and" by mistake." In Re : Diplock, Wintle v. Diplock ((1941) 1 All E R 193) at page 200, Sir Wilfrid Green M. R. said; "The word "or" is prima facie, and in the absence of some restraining context, to be read as disjunctive." Scrutton, L. J. in Greene v. Premier Glynrhorwy Slate Company Limited ((1928) 1 K B 561) at page 568 observed; "You do sometimes read "or" as "and" in a statute. In Brown & Co. v. Harrison (1927) 43 T L R 394, Mackinnon, J., read "or" as "and" in the Carriage of Goods by Sea Act, 1924, and his decision was confirmed by this Court. But you do not do it unless you are obliged, because "or" does not generally mean "and" and "and" does not generally mean 'or'." . In the present case we are concerned with a situation where the power which is vested in the Federal Government has been delegated under the provisions of a statute to a persona designate i.e. "Chairman" and Members", and there is neither the sufficient reason, nor a mistake to be corrected so as to give a different meaning to the word "and". The power has been delegated jointly to "the Chairman and Members", and as a consequence it is exerciseable by all, or none, of them. If the argument that the authorisation made by the notification dated 23rd October 1973 empowers the C Chairman singly and also a Member by himself to exercise the revisional power is to be accepted, it will lead to many complications, and for this reason also it is all the more necessary to construe the word "and" in its ordinary meaning. There is, therefore, no escape from the conclusion that the learned Chairman, Federal Land Commission had no lawful authority to exercise suo mote revisional jurisdiction by himself and pass the impugned order dated) the 3rd July 1974. This order is therefore quashed and in result this petition succeeds and is accordingly allowed, with no order as to costs. We may mention that learned Advocate‑General sought to support the impugned order on the ground that the Chairman, Federal Land Commis sioner is also the Federal Minister and in this capacity he has the authority to exercise the power conferred upon the Federal Government under paragraph 29 and as such the impugned order should be deemed to be an order passed by the Federal Government. This argument is wholly untenable for the reason that the impugned order does not even pretend that it has been passed by the Federal Government; on the contrary at D the very outset it reads; "In exercise of the suo motu revisional jurisdiction vested in the Chairman Federal Land Commissioner, I called for the record of the case of Mir Ghulam Murtaza . . . . ." The impugned order has also been signed by the learned Chairman in his capacity as the Chairman, Federal Land Commissioner and the argument of learned Advocate therefore is devoid of any force. We may further mention that we also heard Syed Sharifuddin Pirzada, Mr. Muhammad Ali Sayeed and Mr. Imam Ali Kazi, Advocates as they are appearing for the petitioners in the connected cases. They also canvassed their arguments on the same lines as Mr. A. K. Brohi and fully supported him. S. A. H Petition allowed.