CHIEF LAND COMMISSIONER, SIND Versus GHULAM HYDER SHAH

ZAFFAR HUSSAIN MIRZA, J. ‑‑In these two appeals an important question of law has arisen, whether the Land Reforms Regulation (Sind Amendment) Ordinance, 1972, which was expressly made retrospective, had the effect of nullifying the alienations of land previously held valid under the provisions of the unamended Regulation.

2. The facts constituting the background which have given rise to the aforesaid question of law may be briefly stated.

C.A.96‑K of 1984

In this appeal one Ghulam Hyder Shah, since deceased and represented by his legal representatives, on 1st March, 1967, owned and possessed agricultural land ad‑measuring 971.01 acres equivalent to 35927 PlUs, situated in Taluka Omer Kot, District Tharparkar, in the province of Sind. The said Ghulam Hyder Shah gifted portions of the land held by him in favour of his several relations, both heirs and non‑heirs during the period between 2nd February, 1967, and 19th December, 1971, equivalent to 9769 PIUs. On the promulgation of Land Reforms Regulation, 1972 (M.L.R. 115), the said Ghulam Hyder Shah submitted a declaration disclosing the gifts made by him as required by the said Regulation. The Land Commissioner, Sind, by his order dated 18th June, 1972, declared all the aforesaid gifts made by him as bona fide transactions, under paragraph 7(1)(b) of the Regulation and accordingly valid, except the gift made in respect of land in Deh Pithoro equivalent to 2137 PIUs which was hell to be in violation of the provisions of the Regulation. As a result of the said order the holding of Ghulam Hyder Shah as on the crucial date of 20th December 1971 was found equivalent to 16167 PIUs and accordingly the excess area comprising 14000 PI Us was surrendered by him.

3. At the relevant time, when the validity of the gifts made by Ghulam Hyder Shah was examined paragraph 7(1)(b) of the Regulation stood as under:‑

"(b) save in cases when, the Commission is satisfied that it w 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 on first March 1967, an area equivalent to more than fifteen 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 nothing in this clause shall apply to an alienation made by a person in favour of his heir.

Explanation I ............

Explanation II ...........

Explanation III ...........

4. On 2nd September, 1972, the Governor of Sind issued Ordinance No.XIV of 1972 called the Land Reforms Regulation (Sind Amendment) Ordinance 1972, which brought about several amendments in the main Regulation including paragraph 7 thereof, in which in sub‑paragraph (1) the proviso to clause (b) was substituted as under:‑

"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 Commissioner 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 interest in or, encumbrance on any land, by way of gift or otherwise, made by a person in favour of his heir; or

(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 hereby and land was alienated in exchange for an area of land equivalent to the same or substantially same produce index units as the land alienated"; and (a) Explanation II shall be omitted and shall be deemed always to have been so omitted."

The change brought about in the said provisions of law was this. Under the unamended clause (b) of paragraph 7(1) alienations made by holders of land during the relevant period in favour of their heirs were immune from scrutiny by the Commission and were accordingly given statutory recognition as valid transactions. With regard to rest of the transactions /alienations, namely, those in favour of non‑heirs, the Commission was empowered to examine them and if satisfied in respect of their bona fide, then alone such transactions were to have effect as valid transfers. Conversely if the Commission was not satisfied about the bona fide of such transactions, the land comprised therein was to be treated as the holding of the transferor. The newly added provisions created a bar to treat any alienation falling within the specified period as a bona fide transaction, except such transactions of transfer as fell within the purview of the second proviso, namely, transfers in favour of heris, widow and unmarried sisters who had not received their due share of inheritance from the ancestral land or transactions of exchange. The net result of the amendment effected in law was that in no case an alienation made in favour of non‑heirs could be upheld as valid, with the result that the area comprised therein was to be treated the land held by the declarant owner.

5. In the events that happened after the amendment of law, the Land Commissioner, Sind, in exercise of his suo motu power of review declared the gifts made by Ghulam Hyder Shah in favour of his non‑heir relatives, as void, by reviewing his earlier orders whereby he had confirmed these transactions as valid. A gift made in favour of the declarant's widowed sister equivalent to 26.8 acres was of course maintained as valid.

C . A . 97‑K of 1984.

In this appeal Mst. Mariam respondent No.l, owned and possessed land equivalent to 19362 PIUs on the relevant date. Out of this holding she had alienated in favour of her nephew, Allah Jurio respondent No.2, a total area equivalent to 5560 PIUs, during the relevant period. In this case also the Land Commissioner, Sind, by his order dated 17th June, 1972, declared the alienation made by her bona fide and valid. As a result the first respondent's holding was found to be equivalent to 13802 PIUs and accordingly the area in excess of 12000 PIUs was surrendered by her.

6. In this case also after the amendments made in the main Regulation, the Land Commissioner, in exercise of his power of suo motu review, re‑examined the case and by his order dated 21st December, 1972, held the alienation in favour of the second respondent to be void ab‑initio under the Amended provisions of paragraph 7(1)(b) of the Regulation.

7. The aforesaid orders passed by the Land Commissioner in exercise of his suo‑motu review jurisdiction were challenged by the respondents in separate constitutional petitions in the High Court of Sind at Karachi. The main contention advanced in support of these petitions was that the subsequent orders passed by the Land Commissioner were bad in law, in that, they proceeded on the basis of amendments made in the law on 2nd September, 1972 which were not retrospective in operation. In the alternative it was contended even if the amendments were held to be retrospective in their operation, they cannot be so construed as to affect the transactions which were past and closed. It may be stated here that the appellants herein did not appear and defend the constitutional petitions.

8. The learned Judges of the Division Bench who decided the constitutional petitions took the view that, although the alienations in dispute were in favour of non‑heirs, at the time the orders in the first instance were passed by the Land Commissioner in June, 1972, the same could be scrutinized and held valid by the Land Commissioner in terms of the law as it then stood and therefore, the question was whether the amending Ordinance, whereby the alienations in favour of non‑heirs was statutorily declared to be invalid, would in any way affect the cases which were "already concluded and closed under the old law." In other words the question considered by the Division Bench was whether the alienations which had been validated in exercise of power available under the unamended law, were rendered void by virtue of the newly added proviso to paragraph 7(i)(b) of the Regulation. It was found by the learned Judges that the amendments made in the Regulation were expressly made retrospective in operation but the contention of the respondents was that even so, they did not affect vested rights which had accrued on account of determination validly made under the existing law holding the transactions to be genuine and consequently being past and closed transactions qua the amended law. The construction placed by the learned Judges on subsection (3) of section 1 of the amending Ordinance, which provided that the amendments shall be deemed to have taken effect on the 11th March, 1972, was as under:

"No doubt in subsection (3) of section 1 of the Ordinance it is provided that it shall be deemed to have taken effect on the 11th of March, 1972, but there is nothing in the language to suggest that the legislature also intended to interfere with the rights duly acquired and vested in accordance with the old law. If the legislature intended that the cases already finalized under the old provision of paragraph 7(i)(b) of the Regulation be reopened and decided in accordance with newly added proviso it should have provided so in the Amending Ordinance. In the absence of a clear provision to that effect in the Ordinance XIV of 1972 it cannot be presumed that the legislature intended to interfere with the vested rights of a party duly acquired in proceedings which were concluded in accordance with the provisions of the old paragraph 7 (i)(b) of the Regulation. The mere fact that the Amending Ordinance XIV of 1972 made the amendment effective from 11‑3‑1972 was not sufficient to reopen the cases duly decided and closed in accordance with the law then existing. It is well settled rule of interpretation that a statute is not to be construed to have a greater retrospective operation than its language made it necessary. After examining the provision of Amending Ordinance we are of the view that the retrospective operation given to the amendments by providing in Ordinance XIV of 1972 that it will be deemed to have taken effect from 11‑3‑1972 was not sufficient to make the amendments applicable to the cases which were already concluded and closed under the old law."

In this view of the matter the learned Judges held that the Land Commissioner was not justified in reopening the cases in the exercise of his suo motu power of review on the basis that the alienations were rendered void by operation of the amendments. By a consolidated judgment dated 28th December, 1982, the Division Bench of the High Court declared the subsequent orders of the Land Commissioner to be without lawful authority and of no legal effect.

9. Being dissatisfied with the judgment the appellants came up before this Court and leave was granted to consider the question of law stated in the opening part of this judgment.

10. It is mainly contended on behalf of the appellants that it having been held that the amendments made in the law were expressly retrospective in operation the learned Judges fell into an error in not holding that no alienations made in favour of a non‑heir could be declared as valid as such power which was previously invested in the Land Commission was taken away by the Amending Ordinance, 1972.

11. Now on a plain reading of the language of the Amending Ordinance there is no ambiguity that the same was given effect' retrospectively and by the mandate of the law the amendments were to be deemed to have taken effect on 11th March, 1972. However, the doubt with regard to the retrospectivity in this case has arisen, on account of the fact and in respect of the orders earlier passed by the Land Commission in exercise of powers vesting in it under the existing law whereby the alienations declared by the two land holders were affirmed as valid transactions. As pointed out by the High Court the legislature has merely declared the amendments effected in the main Regulation to have taken place retrospectively and left the matter at that. No express provision was made in the amending statute to the effect that the new dispensation, totally prohibiting the recognition of any alienations in favour of non‑heirs, will also affect and undo the orders passed under the existing law by the Land Commission prior to the date of the passing of the amending Ordinance. In order to resolve this doubt the matter naturally falls within the domain of interpretation by the Court to determine whether the law as amended will also be applicable to past and closed transactions. To put it differently the question is whether in this sense the amending Ordinance contains an express provision or this result is contemplated by the language of the amending Ordinance by necessary implication. In this behalf the High Court proceeded on a correct principle of interpretation that "no rule of construction is more firmly established than this, that retrospective operation is not to be given to a statute so as to impair an existing right or obligation". The main and primary rule is that every statute is deemed to be prospective, unless by express provision or necessary intendment it is to have retrospective effect. Also the rule that no statute shall be construed so as to have retrospective operation affecting vested rights to a greater extent than its language renders necessary is firmly established.

12. In order to examine the 'controversy it will be beneficial to refer to the nature and object of the amending statute. As already pointed out the amendments relevant for the present purpose were, effected in paragraph 7(1) clause (b). Before the amendment this provision mainly provided that a transfer of any land or creation of any right etc. in land, by any person holding on 1st March, 1967, an area equivalent. to more than 15000 PIUs. shall be and shall be deemed always to have been void. There was an exception to this general rule enacted in this clause to the effect that it will not be applicable in cases where the Commission is satisfied that a particular transfer of such nature was a bona fide transaction. On an analysis of clause (b), therefore, the power was vested in the Commission too declare a transaction in favour of non‑heir to be bona fide and valid. The amending Ordinance, on the other hand, by means of the newly inserted proviso, while preserving the general power of the Commission as was already vested in it to declare a transaction to be bona fide, placed a total bar upon the Commission prohibiting it (with some exceptions which are not relevant for the present purpose) from holding a gift transaction to be bona fide if it was in favour of non‑heirs. The essence of the amending Ordinance, so far as relevant for the present controversy, was, therefore, to put fetters on the power of the Commission from declaring a gift transaction in favour of a non‑heir to be bona fide and valid. It is easy to see, in this perspective, that the newly inserted proviso was a prohibition curtailing the exercise of jurisdiction or powers by the Commission in respect of specified class of transactions. Therefore, if the power vesting in the Commission, untramelled by the prohibition, subsequently incorporated in the law, was once asserted and exercised, the result of such exercise of power will be a transaction past and closed qua the amending Ordinance. It is in this context that the retrospectivity cf the amending statute in this case has to be determined. Looking at the matter in this way we are in agreement with the conclusion arrived at by the Division Bench that there is no express or implied intendment in the provisions that such past and closed transactions would be affected by the amendment. Under the law as ii stood on the date when the earlier orders were passed by the Commission the same were perfectly legal and capable of creating rights in favour of the donees of the gifts scrutinized under the provisions of the said law. Therefore, although the amending Ordinance is retrospective in the sense that it applies to alienations which had taken place before 11th March, 1972, the restrictions on the power of the Commission stipulated by the amending law cannot be retrospectively applied to transaction duly scrutinized and affirmed before the date of the amending Ordinance. This is consistent with the rule of presumption that the legislature does not intend what is unjust or to reopen transactions which have .already resulted in creating title to property to be re‑opened or exposed to jeopardy.

13. There is another aspect of this matter which also fortifies the conclusion stated above. This Court in Province of East Pakistan v. Sharafatullah and others P L D 1970 S C 514, affirmed the established rule that a statute cannot be read in such a way as to change accrued rights the title to which consists in transactions past and closed or in facts which are events that have already occurred. It was postulated:

"In other words liabilities that are fixed or rights that have been obtained by the operation of law upon facts or events for or perhaps it should be said against which existing law provided are not to be disturbed by a general law governing future rights and liabilities unless the law so intends."

It follows from this dictum that once the rights of a person have come under adjudication by a Tribunal in exercise of jurisdiction vesting in it and are determined, with the result that under the existing law such rights come to vest in such persons they cannot be disturbed or obliterated by a change in the jurisdiction or power of such a Tribunal subsequently unless such intention is expressed or arises by necessary implication. In this behalf the rule has been expressed by Bindra's Interpretation of Statutes as follows:

"Rights that have passed from the original, contractual or relational character into rights measured by judicial determination are prima facie outside retrospection, which usually applies to rights not yet so determined."

Therefore, the earlier orders by the Commission in favour of the non‑heir transferees, having been lawfully passed could not be subjected to review by applying the dispensation created by the amending Ordinance to those orders, which amounts to unauthorisedly giving retrospective operation, to the amending law not permitted by the statute itself.

14. For all the aforesaid reasons the impugned judgment of the High Court is unexceptionable and both appeals are, therefore, dismissed with costs.

M.B.A. / C‑17/ S Appeals dismissed.