1979 PLP 195 (CLC)

M. S. H. Qureshi, J.-Sardar Muhammad Nawaz Khan appellant, who died during the pendency of this appeal and whose legal representatives are now before us, was holder of an ancestral jagir in certain villages in Campbellpur District, by deduction of a specified sum from the land revenue. On the 4th of February 1952, the Punjab Abolition of Jagirs Act (IX of 1952) :vas enacted whereby "all jagirs not being military jagirs or jagirs in favour of any religious or charitable institution, created at any time and operative at the time of the coming into force of this Act" immediately ceased to be operative. Under section 5 of this Act, the Government reserved the power to frame rules to give effect to the provisions of the Act. In exercise of this power, the Punjab Abolition of Jagirs Rules, 1952, were notified on the 19th of June, 1953. Under rule 4, the Financial Commissioner in respect of Jagirs the annual value of which did not exceed Rs. 50.00, and the Government in respect of Jagirs the annual value of which exceeded that amount, wore to make a declaration as to what Jagirs have ceased to be operative. It was also stipulated by the said rule that before making the declaration, an opportunity of hearing would be given to the holder of the said Jagir personally or through his authorised agent. No such declaration is stated to have been made with the result that the appellant continued to enjoy the benefits until the coming into force of Martial Law Regulation No. 64 on 7th of February, 1959, by para. 21 of which "all Jagirs, of whatever kind and by whatever name described, subsisting immediately before the commencement of this Re gulation," stood abolished and all rights, interests or estate granted, assigned released, created or affirmed by any such Jagir reverted to the Government free from all encumberance or charge without any claim to compensation. On the 14th of December, 1960, the Tehsildar, Fatehjang, made a demand for recovery of Rs. 54,120 on account of the Jagir money from Kharif 1951 to Kharif 1958. Sardar Muhammad Nawar Khan challenged the recovery by bringing a suit for injunction for restraining the then Govern ment of NTtlest Pakistan from recovering the amount. The suit having been contested by the provincial Government, the following issues were framed :- (1) Whether this Court has no jurisdiction to entertain the suit?O. D. (2) Whether the jagirs in. dispute were not abolished merely by the coming into force of Act IX of 1952 ? O. P. (3) Whether the order of the defendant demanding the refund of Jagir money in dispute is illegal, ultra vires and void ? (4) Whether the defendant was not entitled to realize the Jagir money after Kharif 1951 ? O. D. (onus objected to). (5) Whether the jagir money mentioned in para. No. 1 of the plaint is incorrect ?" It was not the case of the appellant that the Jagir was military or in favour of any religious or charitable institution but his contention was that the termination of the Jagir was dependent upon the making of a declaration envisaged in rule 4 and as no such declaration had been made, the Jagir did not cease to be operative until the promulgation of Martial Law Regulation No.

64. The trial Court after carefully examining the intent of the law and the rule rejected the contention and consequently dismissed the suit with costs. Sardar Muhammad Nawaz Khan then filed this appeal, which was first registered as R. F. A. No. 2 of 1963 at Peshawar and upon the dissolution of the One Unit was brought here and marked as R. F. A. No. 62 of 1970 (LHR).

2. The point for examination in this appeal therefore is whether the jagir in question which was admittedly neither military nor in favour of a religious or charitable institution, terminated on the enactment of the Punjab Abolition of Jagirs Act, 1952 on 4-2-1952, or the termination was dependent upon the declaration envisaged under rule 4 of the Punjab Abolition of Jagirs Rules, 1952 and consequently in the absence of such al declaration did it continue to be operative until the coming into force of Martial Law Regulation No. 64 in 1959. The wording of section 3 off the Punjab Abolition of Jagirs Act, 1952; is clear and express that all jagirs not being military jagirs or iacirs in favour of any religious or' charitable institution immediately ceased to be operative. The declaration meant only for the purpose of specifying as to which of the jagirs being military or for a religious or charitable institution, would be exempt from! the operation of the Act. This is the only interpretation that can be hit' to the intent of the rule which finds support from the words used in sub-l rule (2) of rule 4 that "the cases of all Jagirs the annual value whereof coeds Rs. 50 shall be referred to Government which shall make a declaration as to "which of them has or have ceased to be operative under the provisions of section 3 of the Act." There is no saving whatsoever nor provision for postponement of the terminus in the Act for any Jagir not being military, religious or charitable. That being so, the Rules cannot be interpreted to enlarge the time. According to Sir John B Comyns (Digest, tit. By law, B. I as referred to in Craies Statute La. 1963 Ed. at p. 325), "all by laws are allowed by the law which are mad for the true and due execution of the laws or statutes of the realm, or for the well government and order of the body incorporate. And all bye-laws which are contrary or repugnant to the laws or statutes of the realm are void and of no effect." Channell, J. in speaking of a bye-law of the third class observed in White v. Morley ((1899) 2 Q B 34). "A bye-law is a local law, and may be supplementary to the general law ; it is not bad because it deals with something that is not dealt with by the general law, but it must not alter the general law by ~if making that lawful which the general law makes unlawful, or '' that unlawful which the general law makes lawful." This view had been approved in Thomas v. Sutters ((1900) 1 Ch. 10). The same learned Judge said in Gentel v. Rapps ((1902) 1 K B 160). "It (bye-law) is repugnant if it expressly or by necessary implication professes to alter the general law of the land." This ruling had been quoted with approval in L. M. S. R v, v. Greavear ((1973) 1 K B 367). It is commented in Craies on Statute Law, Sixth (1963) Edition at page 327 "Bye-laws made in pursuance of a statutory power must not go beyond, nor be repugnant to, the enactment under which they are made." Province of East Pakistan etc. v. Nur Ahmad, etc. (P L D 1964 S C 451), it had been laid down that the rule making authority cannot clothe itself with power which the statute itself does not give.

3. Learned counsel, however, referred to Messrs S. Muhammad Din & Sons Ltd., Lahore v. Sales Tax Officer, Special Circle I, Lahore and another (P L D 1977 Lah. 1225) in which it had been observed :-- "For, any statutory rule has even otherwise the force of law so long as it is competently and validly made. This means that once it is held to be intra vices and not in conflict with the parent Act, it has the same effect as it enacted under that Act. Therefore, it seems that if subsection t4) of section 39 is to bear a meaningful interpretation, ;he Courts have no alternative out to hold that the rules made under section 39 are immune to the challenge made on the ground that they are beyond the scope of the Act or in conflict with any provision thereof. Thus a rule which is apparently beyond the scope of the Parent Act will be deemed to have expanded the scope thereof. And if there is a conflict between a rule and a section of the Act, then the conflict will have to be resolved as though it is a conflict between one section and another of the same. Act. Therefore, even if the condition contained in clause (c) (i) of rule 4(1) be beyond the scope of section 8, it cannot be struck down as ultra vires the Act. It can only be construed as having expanded the scope of section

8. In the matter before us, however, we do not find any conflict on inconsistency between the Rules and the Act, for there is nothing in the Rules to suggest that the abolition of the Jagir would be effective from the date of the declaration. It is thus obvious that even if, for the sake. of arguments, a declaration had to be made in respect of a Jagir, which was neither military nor religious or charitable, the abolition would still be enforceable from the date of the enforcement of the Act,

4. Learned counsel then stressed the question of denial of the right of hearing which was envisaged by sub-rule (3) of rule 4 and for this he 1 has relied on the aforecited case of Province of East Paklstan, etc. v. Nur, Ahmad etc. in which, it was held that principle of audi alteram partem is to be presumed to be embodied in every statute in absence of any provisions to the contrary. The contention to our view would have relevance only if the appellant had claimed that the Jagir came under the exception envisaged in the Act. i.e. it was either military or for a religious or charitable institution, which is. however, not the case.

5. There thus can be no manner of doubt that a declaration as contemplated by rule 4 whenever made could not have the effect postponing the termination of the Jagir and that the appellant had no case for resisting the recovery of the amount due from him after the Jagir stood abolished on 4-2-1952. The appeal, therefore, fails and is dismissed. We would make no order as to costs. M. A. K. Appeal dismissed.