ZULFIQAR ALI Versus ADDITIONAL CHIEF LAND COMMISSIONER

K. E. CHAUHAN, J. -Petitioner Zulfiqar Ali Khan owned land in various villages in District Sargodha and Shahpur. In the instant case, however, we are concerned only with land which was held by him in village Chaukera, tehsil and district Sargodha. There took place three mutations with regard to the aforesaid land, namely, mutations Nos. 80, 81 and 82. The details of these mutations are as follows :-

(a) By Mutation No. 80 the petitioner sold an area of 808 kanals and 10 marlas in favour of his wife Mst. Shaukat Begum (respon dent No. 3) ;

(b) By Mutation No. 81 the petitioner sold a further area of 239 kanals in favour of his wife aforesaid, and

(c) By Mutation No. 82 the wife sold (back) an area of 239 kanals to the petitioner.

All these mutations were attested on one and the same date, namely, 31-1-1971. When the case of the petitioner came up for scrutiny under the Land Reforms Regulation (M. L. R. 115) of 1972, to avoid the unnecessary details it will be sufficient to state, the learned Land Commis sioner, Sargodha, by means of his order dated 29-9-1972, held all the three mutations as void on the ground that they violated Paragraph 25 of the previous Martial Law Regulation No. 64 of 1959, wherein it was written that a person could not make any transfer of land the result of which was that he would be left with an area below an economic holding though he was permitted to alienate his entire area. Considering the three mutations as constituting one and the same, transaction the learned Land Commissioner was of the view that in the ultimate analysis since the petitioner did not alienate the entire area but was left with an area. of 239 kanals (which was disguised as a back-sale)-and which was below an economic holding, therefore, the said alienations were void. An economic holding in district Sargodha, it may be mentioned, is 400 kanals i.e. two squares of land. The petitioner filed an appeal but without any success as the same was dismissed by the learned Additional Chief Land Commissioner, on 10-11-1973. The petitioner has come up in writ petition against the aforesaid proceedings and orders to this Court.

2. Learned counsel for the petitioner referred to Para. 7 of M. L. R. 115 of 1972, which reads as follows :-

"Para. 7. Certain transfers void.-Save as otherwise provided in this Regulation-

(a) the transfer of any land, and the creation of any right or interest in or encumbrance on any land, made in any manner whatsoever in respect of any area, on or after the twentieth day of December 1971, by any person holding immediately before that date an area of more than one hundred and fifty acres of irrigated land or three hundred acres of un irrigated land or an area equivalent to twelve thousand units (calculated on the basis of classification of soil as entered in. the Revenue Records for Kharif 1969 and Rabi 1969-70), whichever shall be greater, shall be and shall be deemed always to have been void, and the land so transferred or encumbered shall be deemed to have been owned or possessed, as the case may be, by the person by whom it was owned or possessed immediately before that date :

Provided that in the case of a person to whom the provisions of sub-paragraph (2) of paragraph 8 apply, no such transfer or creation of any right or interest or encumbrance shall be void unless he was holding on the said date an area more than fourteen thousand produce index units.

(b) save in cases where the Commission is satisfied that it was a bona fide transaction, the transfer of any land and the creation of any right or interest in or encumbrance on any land, made in any manner whatsoever, by any person holding (at any time during the period from the first day of March 1967, to the nineteenth day of December 1971 (both days inclusive) an area equivalent to more than twelve thousand produce index units (calculated on the basis of classification of soil as entered in the Revenue Records for Kharif 1966 and Rabi 1966-67), shall be and shall be deemed always to have been void, and the land so transferred or the land on which the right, interest or encumbrance was so created shall be, and shall be deemed always to have been, owned or possessed, as the case may be, by the person by whom it was owned or possessed immediately before that date.

Provided that any transfer of land or creation of any right or interest in or encumbrance on any land by way of gift by a person to whom this clause applies shall, subject to the next succeeding proviso, in no case be -:held by the Commission to be a bona fide transaction

Provided further that nothing in this clause shall apply to-

(i) any transfer of land or creation of any right or in or encumbrances on any land, by way of gift or otherwise, made by a person in favour of his heirs ;

(ii) any transfer of land or right or interest therein, by way of gift, made by a person in favour of his widowed or unmarried sister, who has not received her due share of inheritance of ancestral land ; or

(iii) any transaction whereby any land was alienated in exchange for an area of land equivalent to the same or substantially same produce index units as the land alienated.

Explanation I.-For the purpose of this sub-paragraph and paragraph 10, an heir shall mean the owner's wife or wives, sons, daughters, father, mother and sons and daughters of a deceased son or daughter.

Explanation II.-(Deleted by Land Reforms (Punjab Amendment) Ordi nance, 1972).

Explanation III.-In determining whether a transaction referred to in clause (b) of paragraph (1) was bona fide or otherwise, the Commis sion shall, among other matters, take into consideration the following factors :-

(i) Whether adequate consideration has been paid by or on behalf of the person in whose favour the transfer has been made or any right, interest or encumbrance has been created ;

(ii) under whose management the land has remained which is claimed to have been transferred or in respect of which any right, interest or encumbrance has been created ;

(iii) who has been paying the land revenue and other charges in respect of such land ;

(iv) who has been receiving the rent for or batai share from such land.

(2) If any question arises whether any transfer or other transaction is or is not void under sub-paragraph (1), the decision of the Commission thereon shall, subject to the provisions of paragraph 29, be final.

(3) Nothing in sub-paragraph (1) shall apply to any transfer of land or the creation of any interest or right or encumbrance on any land made by a person who held on twentieth December 1971, land in excess of the permissible limits under paragraph 8, after he has surrendered to Government, in accordance with the provisions of this Regulation, the land in excess of such limits."

3. Learned counsel for the petitioner raised the following five points :-

(a) That his case fell within Second Proviso to Para. 7(1)(b) wherein it was written that the rule contained in Para. 7(1)(b) was not to apply to "any transfer of land or creation of any right or interest in or encumbrance on any land, by way of gift or otherwise made by a person in favour of his heirs". The alienee being the wife of the petitioner (and as such being an heir) the transfers made in her favour by Mutations Nos. 80 and 81 (even after deducting the area of Mutation No. 82) according to the aforesaid proviso, learned counsel submitted, were quite valid, especially when Para. 3 of M. L. R. 115 clearly lays down that "the provisions of this Regula tion and any rule or order made thereunder, shall have effect notwithstanding anything to the contrary in any other law, or in any order or decree of a Court or Tribunal or other authority, or in any rule of custom or usage, or in any contract, instrument, deed or other document". Learned counsel argued that assuming without conceding that the transaction in hand was hit by Para. 25 of previous M. L. R. 64 of 1954, the said Para. should be ignored and the case should be examined now under the Second Proviso to Para. 7(1)(b) of M. L. R. 115 which validates all types of transfers to an heir any other previous law notwithstanding;

(b) even otherwise, it was argued, after the aforesaid first two mutations the petitioners was left with no land in the village and the transaction being of a transfer of the entire holding of the petitioner in the aforesaid village was not hit by any provision of the present or the previous Martial Law Regulation ;

(c) it was further contended that the sale (back) by Mutation No. 82 was made by wife in favour of her husband and the wife not being a declarant her transaction could not be set at naught under any provision of the previous or the present Martial Law Regulation ;

(d) it was also argued that the bar contained in Para. 25 of M. L. R. 64 of 1959 did not on the peculiar facts and circumstances of the present case apply to the wife of the petitioner inasmuch as she was by mutation No. 82 not transferring any area the effect of which would have been to render the remaining property in her own hands as below an economic holding. The third mutation, it was submitted, was an independent transaction and should not be mixed up with the first two mutations so as to effect the sale (back) obtained by the petitioner; and

(e) that in any case the whole of the transaction could not have been set aside and only so much of the area by which the balance in the hands of the husband fell short of the economic holding should have been considered as invalid transferred. The economic holding was 400 kanals, whereas the balance left with the husband was 239 kanals. It was submitted by the learned counsel that the sale to the extent of 161 kanals should have been held as invalid with the result that so much area from the area transferred to the wife should be deducted and added to the area left in the hands of the husband.

4. Before proceeding further it is necessary to refer to Para. 25 of M. L. R. 64 of 1959 which was in force at the time the aforesaid mutations were effected. It reads as follows :

"Para. 25. Restrictions on alienation of holdings.-(1) No person owning more than the area of an economic holding shall be allowed to alienate by sale, mortgage, gift or otherwise any portion of his, holding which may reduce the size of his holding to an area below the limit of an economic holding

Provided that such a person may alienate his entire holding.

(2) No person owning an economic holding shall be allowed to alienate by sale, mortgage, gift or otherwise any portion of his holding

Provided that such a person may alienate his entire holding.

(3) No person owning more than the area of a subsistence holding but less than an economic holding shall be allowed to alienate by sale, mortgage, gift or otherwise any portion of his holding which may reduce the size of his holding to an area less than the area of subsistence holding

Provided that such a person may alienate his entire holding.

(4) No person owning an area equal to or less than a subsistence holding shall be allowed to alienate by sale, mortgage, gift or otherwise any part of his holding

Provided that he may alienate his entire holding, or, in the case of a holding which is less than a subsistence holding sell any part of his. holding to other owners of the same village, deh or mauza.

(5) An alienation made in contravention of the provisions of this paragraph shall be void.

(6) Nothing in this paragraph shall apply to land, whether cultivable or other, which is bona fide required for the purpose of building thereon, and any tenant in possession of such land who refuses to quit after notice may be evicted under the orders of the Deputy Commissioner."

Sub-Para. (1) of Para. 25 reproduced above-stated that "No person owning. more than the area of an economic holding shall be allowed to alienate any portion of holding which may reduce the size of his holding to an area below the limits of an economic holding". (i.e. 50 acres). Subject to the discussion contained in Para. 8 ahead this will show that the bar is absolute and a Court of law on the very language of the aforesaid provision cannot allow an alienor to do that which is prohibited by it. Coupled with this is Sub-Para. (5) which declares in unequivocal terms that any alienation made in contravention of the provisions of this Paragraph shall be void. These provisions may be read together with Para. 29 of M. L. R. 64 which states that "whoever contravenes or fails, to comply with any of the provisions of this Regulation or the rules or orders made thereunder, or fails to make any declaration or furnish any information required by such provisions, or wilfully furnishes incomplete or false information, or tampers with any records relevant to the purposes of such provisions, or obstructs any person in the discharge of his duties or functions under such provisions shall be punished. Maximum punishment 7 years' R. L" In Niaz Muhammad Khan v. Mian Fazal Raqib P L D 1974 S C 134 it has been laid down that as a general rule however, a statute is understood to be directory when it contains matter merely of discretion, but not when those directions are followed up by an express provision that, in default of following them, the facts shall be null and void. To put it differently, if the Act is directory, its disobedience does not entail any invalidity; if the Act is mandatory disobedience entails serious legal consequences amounting to the invalidity of the act done in dis obedience to the provision. Looked at from that point of view it is quite clear that the bar in Para. 25(1) of M. L. R. 64 of 1959 is quite absolute and its violation cannot be permitted because it will not only render the concerned transaction as void but will also put the contravenor under a penal penalty. This is subject to what we are going to hold in Para. 8 ahead.

5. Having examined the nature of the provisions of Paragraph 25 of M. L. R. 64 of 1959, stage is now ripe to find as to whether the transactions in hand were violative of the bar contained therein and if so to what extent. As already indicated since the provision of law involve a penal liability also it shall have to be very strictly construed and each transaction, shall have to be thoroughly scrutinised and in case there is a scope for doubt the benefit of same shall go to the subject rather than to the State. Keeping these principles in view it may be pointed out that a person is entitled to resort to such devices which may save him or his transaction from penal liabilities under law but he cannot escape by simply giving his actions a disguise different from what they really are. This rule is very often applied, for example, in cases of Pre-emption where, in order to find out as to whether a transaction is a sale or not the principle adopted is that a Court of law should see the real nature of the transaction and not the form in which it is couched. In Baldeo Singh and another v. Puttu Lal 21 I C 69 it was held that while the law recognises devices to circumvent the law of Pre-emption a device is something different from a mask. It would be contrary to Public Policy to allow a mask to conceal or shroud the real nature of a transaction or to permit a party to hoodwink the public and defraud the Court by putting on a false disguise. In Muhammad Ishaq and another v. Mst. Fahim-un-Nissa 113 I C 263 (again a case of pre-emption) Stuart, C. J. and Srivastva, J. made certain very instructive observations. They held "it is true that it is not forbidden to a person to circumvent .the law of pre-emption by taking a transfer which falls short of a sale though it may eventually have the same effect as a sale. It has often been said that pre-emption is a weak right and under Muhammadan Law devices were permissible for the purpose of defeating pre-emption. Even under the present system of law, parties to a transaction have been allowed to resort to devices for the purpose of defeating the right of pre-emption but there is a marked distinction between a device and a disguise. A device is permitted but it does not mean that a disguise cannot be exposed. A person in order to defeat the right of pre-emption may decide not to have a sale-deed but to have say, a mortgage-deed with onerous conditions making its redemption difficult or might have a lease executed in his favour making himself liable to pay a small sum, however, insignificant, as rent. In these cases which are only illustrative, there is no real sale. The transferee is only a mortgagee or lessee though for all practical purposes his position may be as good as that of an owner. Such devices, as we have said before, are permissible because they fall short of the transaction of sale which alone can give rise to a right of pre-emption. But the position is entirely different in a case in which the parties had really entered into a sale transaction but disguised it under the mask or cloak of a different transaction. In 'such cases the Court must look to the real nature of the transaction for the purpose of determining whether it could be subject to the right of pre-emption or not". If the transactions in hand are examined on the principles hereinbefore stated, an impression cannot be avoided that though split up into three mutations, it was really a single transaction effected on one and the same . day and time whereby the alienor transferred 808 kanals and 10 marlas of land to his wife, himself retaining only 239 kanals which were below an economic holding. We have not been told as to how the disguise aforesaid could legalise such a transaction which otherwise was invalid subject to our view in Para. 9 ahead. As to whether it was in reality a single deal is a question of fact which has been decided by the Land Reforms authorities after attending to all the facts and circumstances of the case (as for example, the identity of the land, the time of mutations, absence of change of possession etc. etc ) and since their view is based on cogent reasons it is not possible for us to hold it as to be without lawful authority. It has been laid down in Muhammad Hussain Munir and others v. Sikandar and others PLD1974SC139 that it is wholly wrong to consider that the Constitutional provision under Article 98 (which corresponds to Article 201 of the Interim Constitution and Article 199 of the 1973 Constitution) was designed to empower the High Court to interfere with the decision of a Court or tribunal of inferior jurisdiction, merely because in its opinion. the decision is wrong. In that case, it would make the High Court's jurisdiction indistinguishable from that exerciseable in a full-fledged appeal, which plainly is not the intention of the constitution makers. When there is jurisdiction to decide a particular matter then there is jurisdiction to decide it rightly or wrongly and the fact that the decision is incorrect does not render the decision without jurisdiction. Respectfully applying the said principle to the present case, we do not find that any case has been made out before us to hold that it was not a single transaction.

6. As regards the point at '(a)' in para. 3 above we feel that the argument advanced by the learned counsel for the petitioner is not maintainable. Paragraph 32 of M. L. R. 115 which repeals M. L. R. 64: of 1959 and which has a relevancy in this context reads as follows :-

"Para. 32. Repeal and saving.-(1) The West Pakistan Land Reforms, Regulation (Regulation 64 of 1959), hereinafter referred to as the said Regulation, is hereby repealed.

(2) Subject to the other provisions of this Regulation, the repeal of the said Regulation shall not affect ;

(a) the previous operation of the said Regulation or the validity, invali dity, effect or consequences of anything already done or suffered thereunder ;

(b) any right, title, privilege, obligation or liability, acquired, accrued or incurred thereunder ; or

(c) any penalty, forfeiture or punishment incurred in respect of any offence under the said Regulation ; or

(d) any investigation, legal proceedings or remedy in respect of any such right, title, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid ; and any such investigation, legal proceedings, or remedy may be instituted, continued or unforced and any such penality, forfeiture or punishment, may be imposed as if this Regulation has not been made.

(3) Any proceedings pending before an authority constituted or appointed under the said Regulation, immediately before the coming into force of this Regulation, shall stand transferred to such authority constitut ed or appointed under this Regulation as the Commission may, by order published in the official Gazette, specify in this behalf, and the authority to which such proceedings are transferred shall, in such proceedings, act in accordance with the provisions of the said Regulation, as if it had been appointed under the said Regulation."

A perusal of the aforesaid paragraph will show that the repeal of M. L. R. 64 is not to affect the invalidity of anything already done or suffered there under. The transaction in hand being invalid under Para. 25 of M. L. R. 64 of 1959 its status of invalidity was not to be affected and it will continue to be invalid even under M. L. R.

115. The privilege granted with regard to certain alienations in favour of heirs, under Para. 7(l)(b) of M. L. R. 115 is subject to the rider that those alienations should not be suffering from any inherent. vice under the provision of M. L. R. 64 of 1959. It is to be noticed that Para. 32 is as much a part of M. L. R. 115 as any other paragraph and, therefore, under para. 3 it is also to be given effect to and cannot be ignored. The intention of the "provisos" or "exceptions" of para. 7(1)(b) is not to render that as valid which under M. L. R. 64 of 1959 was invalid, and we may go a step further and add that if a transaction was invalid as for example under section 23 of the Contract Act the intention of the various "exceptions" and "provisos" to Para. 7(1)(b) is not to make the same as valid. To be precise, for instance, if a husband had transferred certain land to his wife for the purpose that she should build and run a brothel on that land or with its income, then is the transfer valid merely because it was made by a husband in favour of his heir, namely, wife ? Our answer would be in the negative and we are of the view that only such transfers in favour of heirs are saved which are not invalid otherwise. The scheme of para. 7(1)(b) is to independently declare certain transactions as void but not to declare those as valid which even otherwise were void under any law for the time being in force. We have for the present in our view section 23 of the Contract Act IX of 1872 which reads as follows :-

Section 23. What considerations and objects are lawful and what not.

"The consideration or object of an agreement is lawful, unless it is forbidden by law ; or is of such a-nature that, if permitted, it would defeat the provisions of any law ; or is fraudulent ; or involves or implies injury to the person or property of another ; or the Court regards it as immoral, or opposed to public policy.

In each of these cases, the consideration or object of an agreement is said to be unlawful. Every agreement of which the object or considera tion is unlawful is void."

Section 2(h) of the Contract Act IX of 1872 states that "an agreement enforceable by law is a contract". Section 2 (g) states that "an agreement not enforceable by law is said to be void". In such cases no legal contract ever comes into being and the rights of the parties are determined indepen dently of the impugned contract and there is even no need to avoid or cancel that which never existed in the eye of law. No doubt unenforceability must not be due to any procedural law but should be on account of a substantive law as laid down in Mahanth Singh v. U. B. C. Yi A I R 1939 P C 110. We have already held that Para. 25 of M. L. R. 64 of 1959 was a substantive and mandatory law and not merely a directory provision. If it rendered a contract as void its consequences cannot be avoided. At this juncture it is to be pointed out that Para. 7 of M. L. R. 115 opens with the sentence "save as otherwise provided in this Regulation" which means that the acceptance of certain transactions is not to be made, if there is any rule in this Regulation providing otherwise. Para. 32 is a provision which provides otherwise and states that those specific acts which were invalid under Land Reforms Regulation (M. L. R. 64 of 1959) will continue to be invalid. It will thus be seen that even on the precise language of Para. 7 itself as hereinbefore highlighted there is no scope for validating such transactions which were void for example under M. L. R. 64 of 1959. This view of ours as repeatedly pointed out is subject to Para. 8 ahead.

7. As regards the arguments raised by the learned counsel for the petitioners as reproduced in sub-paras. (b), (c) and (d) of Para. 3 of this judgment above they revolve around a simple question of fact as to whether the three mutations constituted one or three separate transactions. We have already expressed our views on this aspect of the matter and have held that no case for interference on this question of fact has been made before us. These contentions, therefore, are hereby repelled.

8. As regards the point at (e) in para. 3 above, we have, after some elaborate discussion, already held in Writ Petition No. 845/73, entitled Ghulam Mehr v. Chief Land Commissioner etc., decided today that the invalidity referred to in various sub-paras. of Para. 25 of M. L. R. 64 of 1959 is only vis-a-vis that portion or fraction of area by which the balance holding of an alienor is reduced from the limit below which he could not be permitted to reduce the same and does not render the entire transaction as void. 1n the instant case the husband was required to keep an area of 400 kanals with him but he kept only 239 kanals Le. 161 kanals less. If the vendee was willing to maintain the bargain at the same price but with area reduced by 161 kanals (which will be added back to 239 kanals of the husband so as to make good his holding of 400 kanals) then the sale to that extent in the name of the vendee could be maintained. In this way the vendee would get not 808 kanals and 10 marlas but only 647 kanals and 10 marlas. If the parties so desire they can move the learned Additional Chief Land Commissioner in that respect who will deal with the matter in accordance with law. The writ petition is disposed of with these observations. There shall be no order as to costs.

S. A. H. Order accordingly.