FEDERAL LAND COMMISSION through its Senior Member, Islamabad vs SHER

ORDER

1. ' MUHAMMAD AFZUL ZULLAH, C.J.---Leave to appeal, in these 29 petitions, has been sought by the Federal Land Commission; against the acceptance by the High Court of several Constitutional Petitions, filed by the respondents side.

2. ' The question involved is: whether by virtue of power conferred on the Federal Government under section 25 of the Land Reforms Act, 1977 it could issue such an order which would nullify the main provision contained in the said section. It reads as follows:-- "All proceedings pending before the Federal Land Commission shall, on commencement of this Act, stand abated unless the Federal Government directs otherwise in a case or class of cases. "

3. (Underlining is ours).

4. ' The facts briefly stated are that declarations were filed from the respondents side under Martial Law Regulation No,

115. After due processing by the Land Commission Authorities the cases stood concluded by the orders of the Land Commissioner Sindh in or about 1972. It was thereafter that the Federal Land Commission in the purported suo motu exercise of its revisional powers under Para. 29 of the said M.L.R. Issued notice to the parties on the respondents side for appearance obviously for further scrutiny of the cases. These proceedings took place in or about 1976. In pursuance thereof, the proceedings had not yet completed when the Constitutional Petitions challenging the same were filed in the High Court. In the meanwhile Land Reforms Act, 1977 which had replaced the Land Reforms Ordinance, 1977 was enacted in January, 1977. A policy of this newlyenforced law which was enacted after sufficient experience, at least on the procedural side, had been gained, was that the then Federal Land Commission should not be left with a power, uncontrolled by the Federal Government, to decide all those cases in which it had initiated suo motu proceedings. This policy and concept of control was projected in the peculiar drafting of section 25 of the Act. On the one hand it declared and effectuated the abatement of all proceedings pending before the Federal Land Commission which of course was the projection of one part of the policy; namely, that the Federal Land Commission should not have absolutely uncontrolled power in this behalf. On the other the Federal Government acquired the power by virtue of this very section, in respect of cases of: individuals or a class of individuals to be kept alive. Similarly a case of particular type or all cases falling within that type and may also by classification of time and space - say the cases of certain area or the cases after or before a certain date, were also visualised. Be that as it may, the more one concentrates on the provisions contained in the new enactment particularly secion 25, the more strong it is felt and realised that the purpose and object of section 25 was to achieve abatement of all cases except those which were intended to be kept alive by the Federal Government by application of mind to such cases either individually and/or class/es. The intention underlying section 25 was never to keep alive the pre-existing position.

5. ' The foregoing being the touchstone rule of interpretation of section 25 any direction made thereunder by the Federal Government which is against this touchstone, cannot be upheld as intra vires the powers of the Federal Government. In the present case the direction contained in the relevant Notification of the Federal Government reads as follows:-- "In exercise of the powers conferred by section 25 of the Land Reforms Act, 1977 (H of 1977), the Federal Government is pleased to direct that the proceedings in cases under paragraph 29 of the Land Reforms Regulation, 1972, pending before the Federal Land Commission on the commencement of the said Act shall not stand abated."

6. ' The learned Judges of the High Court having examined the purport of this direction made the following very weighty observations in that behalf:- "We are inclined to hold that under above-quoted section 25 the Federal Government had the power to direct that a case or class of cases could not stand abated but it could not have issued the impugned Notification directing that all the cases which were pending before the Federal Land Commission before the enactment of the Act shall not be abated. The impugned Notification in fact purports to nullify the effect of section 25 of the Act as a whole and, therefore, it is ultra vires of the powers of the Federal Government."

7. ' We also agree with the interpretation of the Notification in question by the High Court. Its language, intention and purport obviously was to do away with the abatement of all cases covered by section 25, which was neither the intention underlying the said provision nor by its language it was permissible. Accordingly, while condoning the delay in filing of some of the petitions we do not consider it a fit case for grant of leave to appeal. The same, therefore, is refused.