' This second appeal under section 100, C. P. C. Is directed against the judgment delivered by a learned District Judge, Larkana, on 19-1-1977, whereby he allowed the appeal of the respondent and reversed the judgment of the trial Court decreeing the suit of the appellant, who was the original plaintiff.
2. The circumstances in which this second appeal has been filed are that Survey No, 121, having an area of 6 acres and 28 ghuntas, in Deh Thulla, Tappo Bhangi Kaihoro, Talkua Dokri, originally belonged to the appellant. He sold the same to respondents Nos. 1 and 2 on 2-4-1959 through a registered sale deed. The deed contained a stipulation for the reconveyance of the land to the appellant, if the appellant repaid to the respondents the consideration of Rs, 7,500 paid as price of the land by the respondents, within a period of 7 years from the date of the transaction. It is alleged that the appellant sought to enforce his right under this stipulation but as the respondents did not give a favourable response, he filed a suit in a Civil Court, being Suit No, 289/52. In his plaint, the appellant claimed that though the deed of conveyance was ostensibly a sale deed with a condition for conveyance, it was in fact a deed for mortgage with possession. It was further claimed in the plaint that the sale price given to him by the two respondents was Rs, 4,000, and not Rs, 7,500, as wrongly stated in the said deed. The suit was dismissed by the trial Court in 1963 on the ground that there was no substance in the contention of the appellant that the real transaction was a mortgage and that a perusal of the sale deed showed that it was a sale at best with a condition for reconveyance under certain' conditions. The appellant preferred an appeal against the decree of the trial Court but the District Court dismissed his appeal. The appellant accordingly preferred a second appeal to the High Court which was decided on 28-10-1971. In the High Court a new plea was raised, namely, that the sale was hit by the provisions of the Sind Rural Credit and Land Transfer Act, 1947. As this plea had not been raised by the appellant in his pleadings, the High Court remanded the case to the trial Court with the direction that the appellant be permitted to amend the plaint. Upon remand, the appellant amended the plaint and the learned trial Court framed two additional issues relating to the new plea raised.
3. While the suit was pending, during the second round, in the trial Court, the respondents obtained a sanction from the Collector of Larkana, according sanction to the sale in question. The learned trial Court held that the sanction was invalid, as firstly, the appellant had not been given an opportunity of hearing before the sanction was granted, and secondly, the sanction had been given very late. On these findings, the learned trial Court decreed the suit of the appellant. On appeal, a learned Additional District Judge, reversed the decision of the learned trial Court on the ground that the sanction was proper and on the further ground that it would be an "irony of fate" if the respondents were deprived of land after lapse of 16 or 17 years.
4. I have heard Mr. Ghulam Ali Khokhar, the learned counsel for the appellant, and Mr. Ali Akbar who represented the respondents. Both .The learned counsel agreed that the only issue involved in the present appeal was whether the sanction by the Deputy Commissioner, Larkana, was valid. Mr. Ghulam Ali Khokhar assailed the sanction on two grounds. His first ground of attack was that it could not have been granted without giving an opportunity to the Vendor of being heard, and in this behalf he submitted that the grant of sanction violated the principle of natural justice audi alteram partem (no one shall be condemned unheard), and in support of this ground he sought to place reliance on the decision of this Court in Pir Pagaro v. Chief Land Commissioner (1). His second ground of attack on the sanction was that at the time that it was granted, there was no provision in the Sind Rural Credit and Land Transfer Act, for the grant of such sanction, as the said Act had been amended by Sind Act IV of 1963, whereby the provision for sanction had been omitted except in the case of alienation made to creditors. He submitted that the rights of the parties are to be determined as existing on the date of the institution of the suit and not as they may have been modified subsequently, and since no sanction had been accorded under the aforesaid Act, while it provided for the type of sanction which was required in the instant case, the subsequent sanction was clearly invalid.
5. Mr. Ali Akbar, on the other band, submitted that the maxim Audi Alteram Partem did not apply in the instant case as no vested right of the appellant was being affected by the grant of sanction by the Collector. In regard to the second ground of attack on the sanction, he submitted that even under the amended law power to the Collector was retained for grant of sanction.
6. So far as the first ground of attack upon the sanction in question is concerned, namely, the attack on the basis that it violated a rule of natural justice, I find no substance in this contention.
The learned counsel for the appellant was not being prejudiced or violated by the Collector by not giving him an opportunity of being heard before granting the sanction. The appellant had sold the land in question by means of a registered sale deed and had obtained, according to the sale deed, full price for the land. It is true that since the holding of the appellant was small, the transaction required the sanction of the Collector under the Sind Rural Credit and Land Transfer Act, but this sanction was on account of the policy of the Government; discernible in the aforesaid Act, that persons with small holdings should not dispose of their land indiscriminately, and power was given to the Collector to scrutinize the sale and accord sanction where he considered C that the sale was bona fide and was for the benefit of the small Khatedar. In fact, the appellant himself should have applied to the Collector for the grant of the sanction before completing the transaction, but the law does not (1) PLD 1974 Kar. 375 require that the sanction be granted on his initiative only. The sanction could thus be granted on the application of the vendees, as in the instant case.
7. It next falls to be considered as to what is the effect of the amendment in the Sind Rural Credit and Land Transfer Act, 1947, by Act 1V of 1963. Before its amendment the Act provided that a land- ho der, whose total holding did not exceed the stated minimum, could not make a permanent alienation of his land or any part of his holding, without the sanction of the Collector. Such sanction could be given after the act of alienation was otherwise completed, as provided by section 5(2) of the Act. Subsection (2) of section 7 provided that a permanent alienation made in violation of the Act was null and void. Admittedly, till 1972, the requisite sanction was not obtained, Till that date thus the sale was null and void under the aforesaid Act.
8. By Act IV of 1963, substantial modifications were made in the Sind Rural Credit and Land Transfer Act, 1947, so far as the principle of sanction was concerned. The requirement of sanction in every case where a landholder having a holding not exceeding the minimum area was permanently transferring his land was done away with and the requirement of the sanction was limited only to those cases where such a landholder was permanently alienating his land to a creditor or any beneficial interest in consequence of such alienation was passing to the creditor. It is not the case of anybody that the respondents were creditors of the appellant. As such, no sanction under the amended law was required in respect of the transaction. This also appears to have been the view of Dorab, J., while remanding the case to the trial Court during the first round of litigation. The point, however, that merits consideration is whether the Collector was competent, even after the law had been amended, to grant ex post facto sanction to a transaction which had taken place in 1959.
Although Mr. Ali Akbar did not place reliance on the provisions of section 4 of the West Pakistan General Clauses Act, 1956, I have considered the effect of the said provisions for the purposes of determining whether the power of the Collector to give ex post facto sanction survived the amendment of the original Act by Said Act IV of 1963. The relevant provisions of subsection (1) of section 4 of the West Pakistan General Clauses Act, 1956, read as follows :- "(1) Where this Act or any other West Pakistan Act repeals any enact-mint, then unless a different intention appears, the repeal shall not-
(a) .........................
(b) ..............................
(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or
(d) affect any such investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the repealing Act had not been passed."
9. The Sind Rural Credit and Land Transfer Act, 1947, contemplates that ordinarily the sanction to the alienation, in cases where it is required, should be obtained before the alienation proceedings are completed. However, the rigor of this provision is softened by allowing sanction to be obtained even after the act of alienation is otherwise completed. This does not, however, mean that the sanction is to be granted several years after the act of alienation is completed. In the instant case, the sanction was granted some 13 years after the alienation had been completed. In my opinion, the grant of sanction after the lapse of such a long period is clearly against the spirit of the Sind Rural Credit and Land Transfer Act, 1947. Furthermore, the said Act had in the meantime been materially altered and, as already pointed out, the provision for sanction had been done away with except in cases where the alienation by the landholder was made in favour or for the benefit of his creditor. The provisions of subsection (1) of section 4 of the West Pakistan General Clauses Act, 1956, including the provisions relating to the preservation of rights and liabilities upon the repeal or modification of an Act, are subject to the important condition that there should not be a different intention manifest in the repealing statute. 11 the repealing or amending statute contains either explicitly or by necessary intendment, a different intention, then these rights or liabilities would not survive the amendment of the original statute. This position was considered by their Lordships 01 the Supreme Court in Pakistan Tobacco Company Limited v. Karachi Municipal Corporation (1), with special reference to the provisions of section 4 of the Municipal Administration Ordinance, 1960, which inter alia provided that on the coming into force of the said Ordinance, the appointment rules, regulations, or bye-laws made, notifications, orders or notices, issued, taxes imposed or assessed, contracts entered into, suits instituted or actions taken under the repealed enactments shall, so far as not inconsistent with the provisions of the said Ordinance or the rules, would be deemed to be under the said Ordinance and be continued. On the basis of this provision, the Karachi Municipal Corpora-Dion sought to continue terminal tax which it had been levying under the provisions of section 96 of the Karachi Municipal Act, 1933. It was held by their Lordships of the Supreme Court that despite the provisions of section 4 of the Municipal Administration Ordinance, 1960, the right of the Karachi Municipal Corporation to levy terminal tax had lapsed with the coming into force of the Municipal Administration Ordinance as it contained no provision for the levy of the terminal tax and consequently the said Ordinance is to be deemed to have a provision inconsistent with the provision for the collection of the terminal tax.
10. In the instant case also the Sind Rural Credit and Land Transfer Act, 1947, as amended by Sind Act IV of 1963, does not contain any provision for the grant of a sanction in cases of alienation to persons who are not creditors of the alienors. As such the provisions contained in the General Clauses Act with regard to the preservation and saving of rights under the Sind Act would not survive amendment of the said Act. I am, therefore, of the opinion that on the amendment of the aforesaid Act, the right to grant sanction by the Collector in cases of alienation by land owners in favour of persons who are not their creditors had lapsed and they could no longer grant sanction in such cases. The sanction given by the Collector in 1972, accordingly, in my opinion, was invalid and has no legal force.
11. For the reasons stated by me above, I would reverse the decree and the judgment of the 1st Appellate Court and would allow the appeal with costs.
12. While I was dictating this judgment the learned counsel submitted (1) PLD 1967 SC 241 that they have agreed that the respondents will be allowed a period of 2 months to remove the standing crop which they had sowed on the land in dispute.