Mian Saqib Nisar, J--All these appeals, with the leave of the Court, have arisen out of a common judgment of the Lahore High Court, whereby allowing the constitution petitions of the respondents, to the effect, that the notification dated 8.3.1995 of the Federal Government issued under Section 25 of the Land Reforms Act, 1997 (the Act) and the notice of the Federal Land Commission, dated 4.6.1995 both challenged therein, were set aside. As common questions of law are involved in these matters, thus the cases are being disposed of together.
2. The factual backdrop of the case is that respondent in Civil Appeal No, 770 of 2004 was a declarant pursuant to MLR-115 of 1972, whereas the respondents of other two appeals were the vendees of the land from him, which transactions in their favour were made in between the years 1968 to 1969. The noted transactions were scrutinized by the Land Commissioner, Bahawalpur and vide order dated .12.6.1972 those were held to be bonafide and valid in fact and the law. The Chairman Federal Land Commission, however, took suo moto revisional cognizance of that order and the matter was yet pending before him when the Act was enforced on 9.1.1977. Section 25 whereof ordained "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". It may be pertinent to mention here that in the first instance, pursuant to the above provision, a notification dated 23.9.1978 was issued, whereby all the pending matters with the Commission on the enforcement of the Act were saved from abatement, however, the said notification and certain orders passed thereupon by the Federal Land Commission in some cases came under challenge before the Courts and the notification etc. were struck down. The reported decisions in this behalf are Ali Muhammad etc. Vs. Federal Land Commission etc. (NLR 1989 Revenue 84) and Mst. Jamzadi and others Vs. Senior Member Federal Land Commission and others (1990 CLC 746). These dicta alongwith other matters finally came up for, consideration before this Court in Federal Land Commission through its Senior Member, Islamabad Vs. Sher Muhammad and others (PLIJ 1990 SC 626) and it was held "be that as it may, the mare one concentrates on the provisions contained in the new enactment - particularly Section 25, the more strong it is felt and realized 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 (emphasis supplied). The intention underlying Section 25 was never to keep alive the pre-existing position. 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".
It may be relevant to state here, that in the meantime, the Federal Land Commission on the basis .of said notification treating the case of the respondents as the pending proceedings, declared the noted transactions to be invalid and not bona fide through an order dated 22.1.1979; the respondents in the circumstances were constrained to challenge this order in a Constitutional Petition No, 1239/1979 before the learned Lahore High Court (Bahawalpur Bench) and the Court vide judgment dated 21.11.1993 was pleased to allow the same and by relying upon the pronouncement of this Court in the case of Sher Muhammad (supra), declared the impugned notification/notice as without jurisdiction and of no legal effect. From the record, it transpires that thereafter the Federal Government on 8.3.1995 issued a fresh Notification No, 2(112)92-G-II under Section 25 of the Act, purporting to save/resurrect this particular case from the abatement; based thereupon, the Federal Land Commission issued notice dated 4.6.1995 to the respondents to appear before it. It is in this context, that the present constitutional petitions were filed by the respondents before the High Court, which have been allowed vide impugned judgment dated 30.1.2002, on the premise that no decisive step has been taken in the matter, as at no stage the land was either resumed by the Federal Government or surrendered by the declarant; in other words, the land never vested in the Federal Government either within the meaning of MLR-115 or the said Land Reforms Act, 1997, therefore, the case was held to be covered by the pronouncements of this Court reported as Qazalbash Waqf and others Vs. Chief Land Commissioner, Punjab, Lahore and others (PLD 1990 SC 99) and Chief Land Commissioner, Punjab and others Vs. Chief Administrator of Auqaf, Punjab and others (PLD 1998 SC 132).
4. The leave, in the cases was granted vide order dated 11/12.3.2004 to consider, the pleas, primarily, whether the Federal Government was vested with the power under Section 25 ibid to issue the impugned notification which was illegally set aside by the High Court; the application of the two judgments to this case, upon which reliance was placed by the High Court in passing the impugned judgment and also to consider the contentions raised by the respondents' counsel inter alia, the scope of the said section and whether it could be resorted to after 18 years etc.
3. Learned counsel for the appellant has argued that absolute and unqualified power was conferred by the legislature upon the Federal Government to issue the notification for saving any case/es from the abatement, which authority was/is not time bound and the Government after applying its mind had validly set apart, resurrected and saved this case from those abated. It has also been argued, that the judgments (supra) on which reliance has been placed upon by the learned High Court has no relevance or nexus to the issue in hand; that the High Court, by virtue of the impugned judgment, has rendered the provisions of Section 25 of the Act as nugatory and redundant. It is urged that the word "unless" appearing in the section is of wide import .and should be read as an "exception" to the abatement, empowering the Federal Government to retain and keep alive any single case or a class of cases, therefore, no restricted meaning abridging or curtailing the power of Federal Government can be assigned to the said law. About the meaning of the word "unless'' reference has been made to some law, dictionaries and the judgment reported as C.S.D. Swami Vs. The State (AIR 1960 SC 7 Page 11 Para (7)); the concept of abatement has been elucidated by the learned counsel with reference to the judgments reported as Muhammad Idrees Vs. Agricultural Development Bank of Pakistan and others (PLD 2007 SC 681); Sardar Ali and others Vs. Muhammad Ali and others (PLD 1988 SC 287) as well. On the contrary, the learned counsel for the respondents has narrated to us the history and evolution of the Land Reforms in the country; the object behind the enforcement of Act, 1977 particularly the purpose of Section 25 and has argued that when the Act was promulgated on 9.1.1977, all the proceedings pending at that time, stood instantly abated, however saving only those case/es regarding which either prior notification had been issued by the Federal Government or simultaneously alongwith the enforcement of the Act. It is also submitted that the impugned notification dated 8.3.1995 through which this case was declared unabated does not prescribe any reasons showing the lack of proper application of mind, therefore, it is invalid on that count too; same is the submission for the notice of the Federal Land Commission dated 4.6.1995 which was also challenged in the constitutional jurisdiction by the respondents. Learned counsel on the concept of abatement has made reference to the judgments reported as, Sri Lakshmi Narayan and others Vs. Sri Surath Lal Chakraborti and others (PLD 1964 Dacca 177); Civil Aviation Authority and 3 others Vs. Izhar Ahmad and 144 others (2001 SCM R 328) and Muhammad Aslam and 5 others Vs. Haji Khuda Dad Khan through L.Rs, and 7 others (2008 SCM R 886) to argue that abatement means the immediate and complete end and termination of the legal proceeding, without a saviour. It is further .urged that in any case unlimited time was not available to the Federal Government to save any case from abatement, rather in such a situation the concept of "reasonable time" should be applied; the doctrine of past and closed transaction was/is duly attracted to the case, the sanctity whereof cannot be violated after eighteen years through the process of the impugned notification/notice. It has also been submitted that by the time, the notification dated 8.3.1995 was issued, the Land . Reform Act had been declared as ultra wires by the Supreme Court in Qazalbash case (supra), therefore, it shall be inequitable to interfere in the matter. In this regard, Mr. Gulzarin Kiyani, learned Sr. ASC has pleaded that the Supreme Court is not an ordinary Court, but the highest Court of equity in the country and thus should decline relief to the appellant, particularly in view of the above legal development and also when the notification has been issued with inordinate delay without any explanation forthcoming in this regard. In support of his plea about the equitable exercise of jurisdiction, the learned counsel has referred to a judgment from the Indian jurisdiction reported as Municipal Board, Pratabgarh and another Vs. Mahendra Singh Chawla and others (AIR 1982 SC 1493).
6. Heard. The expression 'Abatement' has variable meanings however in relation to the legal proceedings, certainly it connotes to put an end to, to do away with, to nullify, to make void; conveying a complete and absolute-termination of the proceeding, thus if the provisions of law relating to abatement are unambiguous, unqualified, definite and unrestricted, in that, where directly or indirectly no exception thereto is caused or attached, the abatement shall be ipso jure i,e, by the law itself; by the operation of law itself, and shall be fully accomplished without further recourse to any action or the step being taken and the proceedings shall be done away with automatically. On account of above situation and in this manner a statutory right, obviously 'vested' in nature, is created in favour of the party, who would benefit due to the abatement. But where the legislature in its wisdom has made the course of abatement conditional, or subject to any limitations or where it is provided to save, resurrect or exclude any category of proceedings from the realm thereof, the abatement shall not take effect otherwise then, as strictly prescribed by the law.
7. While considering this case on the above touchstone, the provision of Section 25 ibid can be divided into two parts, the first is ordained and structured on the principle of ipso jure, thus all the pending proceedings on the enforcement of the Act shall as per force thereof extinguish, however, the second part syntactic with the word unless" contains an inbuilt exception to the above rule, inasmuch as, it empowers the Federal Government to keep alive and/or resurrect or save a case/es from the fetters of abatement. The word "unless" appearing in the section, thus is of quite importance and has to be given a purposive meaning, which has been defined in the Black's Law Dictionary to connote "if it be not that; if it be not the case that; if not; supposing not; if it be not; except. A reservation or option to change one's mind provided a certain event happens, a conditional promise". In Stroud Judicial Dictionary, it is defined as 'except' and is probably of the like value as 'except'. Therefore, for all intents and purposes the said expression should be construed as an exception in the nature of a `proviso' to the first part, otherwise the second part of the section shall be rendered nugatory and redundant, which vice cannot be imputed while interpreting the Act of the Parliament.
8. We are unable to subscribe to the view of the learned counsel for the respondent that in order to save any pending proceedings from abatement, the notification should have either been issued before the promulgation of the Act or simultaneously therewith. In this behalf, two main reasons are assigned, firstly, the Act has been enforced by the Parliament and the power 'thereunder is being given to the Federal Government to save a case/es from the abatement. Under the Constitution of Islamic Republic of Pakistan, 1973 the legislature and the Federal Government are two distinct entities and institutions of the State having their own independent domains and spheres of authority and functions; the legislature makes the law, whereas, the Government has to act in accordance with and under that law. Such a power/authority could only be assumed and be exercised by the latter, after the law has come into force and not before. It is constitutionally inconceivable and incomprehensible that the Government could exercise the powers of saving the case/es from abatement even prior to the promulgation/ enforcement of the Act. This reason shall also be true for the other submission of the learned counsel about the issuance of simultaneous notification, because the executive could exercise the power conferred to it by the law, only after the law has come in force, and not synchronous thereto. Secondly; the Federal Government was not conceived to act under Section 25 (ibid) in a mechanical manner; it was for one of such reasons that the earlier notification dated 23.9.1978 was struck down, rather as per the intent of the law, the Government was empowered to decide by proper application of mind and for the justiciable reasons, as to which cases should be saved, set apart or resurrected from the abatement, obviously for this, sometime was required by the Government, thus the issuance of prior or simultaneous notification was beyond and contrary to the legislative intendment. In this regard, the words "directs otherwise" appearing in the section lend support to the interpretation that the power enabling the Federal Government to issue notification is neither prior to the Act nor simultaneous therewith, because the syntax of the expression is not in relation to the Past or Present, but after the law has taken effect.
9. The next question for the consideration of this Court is what should be the time frame in which such power should be exercised by the Federal Government; if unlimited time is available or some fixed period should be read into the section or the principle of 'reasonable time' should be applied thereto. For answering the above proposition, it may be mentioned that the language of the section does not suggest if a specific time constraint was set out in which the power should be exercised; we are also not convinced if the rule of reading in should be applied in this matter and definite time should thereby be construed as fixed. But at the same time, it is inconceivable that the legislature while promulgating the law was oblivious of the doctrine of 'past and closed transaction'; and also lost sight of the true object for which the abatement was being enforced and thus allowed indefinite, boundless, endless and inexhaustible period, empowering the Federal Government to pick and choose its own time to resurrect/save any case from the abatement, even after the lapse of a quarter of a century or more. This to our mind, can neither he nor was the intention of the legislature. The question therefore which immediately arises for the resolution is, as to what should be the time in this behalf and on what rule of law it should be so settled? The answer is provided by the equitable principle of 'reasonable time'. Though this doctrine has overwhelming application and nexus to the exercise of rights and the performance of obligation in relation to the contracts between the parties, where no time is fixed. But the rule can be safely extended to and be pressed into service to the cases where any act or function has to be performed under the law by a person/individual, the State/Government through its executive functionaries, the statutory bodies/organization, body politic, or a body corporate run and controlled by the State etc. and no time is fixed in this respect. However, the rule cannot be applied randomly, but by strictly keeping into consideration object of the law under which the act or function is required to be performed. This is the foundational yardstick for invoking the doctrine and for construing as to what should be the `reasonable time' in a given case. If the object of law envisages that the act/function can be performed at any point of time, the rule should not be resorted to; but if it is otherwise, the principle should be applied to meet the ends of justice.
10. The object of the Act ibid has been elucidated in the case of Sher Muhammad supra in the following words "a policy of this newly enforced 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: individuals or a class of individuals to be kept alive". Thus, keeping in view the afore-stated object and the language of Section 25, as has been segregated into two parts, it is clear that the legislature intended to abate all the pending cases with an immediate effect, but created a narrow exception enabling the federal Government to save, resurrect etc. certain case/es from the abatement by strictly and squarely following the object for which the abatement was enforced and not otherwise. But while doing so the Government could not be overwhelmed by its caprice, whim and subjective selection, having choice of inexhaustible and endless time; rather could only exercise the power within a reasonable time, as where no time limitation is provided by any statute for certain action which has the effect of impairing and pulverizing the vested right of a person, the Court is empowered to invoke and impose the above rule for the carrying out such an action, in other words, the Government is not invested with unbridled and absolute power to pick and choose any case at any point of time, without assigning any reason, or for invalid reasons, whereas such power was encompassed by and subject to the principles of, 'past and closed transaction', how, when and to what an extent a 'vested right' can be effected or obliterated; and of course the rule 'reasonable time'.
11.From the above discussion, the ancillary question which arises for determination, is what should be the "reasonable time", in this respect. It may be held that no general standards can be set out, and such time is and shall be dependent again on the purpose of the law to be achieved by an act or function to be performed, therefore, it shall be for the Courts to consider and evaluate the purpose of the law and to lay down in a given case such period in which the action should have been initiated. Anyhow, keeping in view the object of Section 25 ibid, the period of 18 years by any standard cannot be said to be the reasonable for the exercise of power conferred upon the Federal Government therein; even if as argued by the appellant's learned counsel the `reasonable time' should be measured from the date of the decision in Sher Muhammad (supra), still the judgment was delivered on 25.3.1990 and the impugned notification in this case is dated 8.3.1995, which is after the lapse of about five years, this too does not commensurate with the object of the law i,e, the immediate abatement of all the pending proceedings, but saving only some which the Federal Government wanted to keep alive, resurrect etc. five year time if given shall be even an. infringement of the doctrine of past and closed transaction which by itself creates a vested right, besides, it shall also be violative of the statutorily created vested right, as stated above. Therefore, in our view at the most the exercise of saving the cases from the abatement should have been completed within a period of six months and this by all the means would be the 'reasonable time' in the present case.
12.There is another aspect of the case, that the impugned notification does not assign any reason for the exercise of the power by the federal Government under Section 25 ibid, such notification as held in Sher Muhammad's case (supra) and also in this dictum can also not sustain on this score also. The Federal Government as stated earlier could not act arbitrarily, capriciously and in a mechanical manner, rather was required under the law to assign justiciable reasons, amenable to the power of judicial review of the superior Courts, which are conspicuously missing in this case, rendering the notification untenable in the eyes of law. The argument of the learned counsel for the appellant that the reasons are provided in the file on account of which the decision was taken to set apart this case, suffice it to say that there is no material on this file to support the plea of the learned counsel. Therefore, for this account also the notification cannot sustain.
13.In the light of what has been stated above, we are of the considered view that in the facts and circumstances of the case, the provisions of Section 25 of the Act could neither be nor has been legally and validly invoked by the Federal Government and, therefore, the Lahore High Court may be for somewhat different reason, but has lawfully allowed the writ petitions of the respondents and has set aside the impugned notification dated 8.3.1995 and also the notice of the Federal Land Commission.
14.In the foregoing, these appeals have no merits and are hereby dismissed.