1. ABDUL QADEER CHAUDHRY, J.-This Judgment would dispose of the Petitions Nos. 94, 95, 96, 97, 98, 114, 115 and 116 of 1978 as they arise out of the identical facts and the common points are involved in all these petitions.
2. The short facts of each petition are given below :- Constitution Petition No. 94 of 1978 The petitioners had purchased 1136 acres of land belonging to Mst. Aisha were of Mir Mahboob Ali Khan Magsi on payment of sale consideration of Rs. 8,900 and the mutation in respect thereof was carried out in Revenue record on 29-5-1971 (Annexure A). The petitioner No. 3 had purchased 915 acres of land from Mst. Aisha for a sale consideration of Rs. 12,000 and mutation thereof was carried out in Revenue record on 29-5-1971 (An--nexure B).
3. Constitution Petition No. 95 of 1978 The petitioners Nos. I and 2 have purchased 2596 acres of land for a sale consideration of Rs. 8,000 and mutation in respect thereof was carried out in the Revenue record on 3-7-1970. The petitioners Nos. 3 and 4 had purchased 174'1 acres of land from Mst. Aisha for a sale consideration of Rs. 6,000 and mutation in respect thereof was carried out in the Revenue record on 5-9-1970. The petitioner No. 5 had purchased 4890 acres of land for a sale consideration of Rs.. 5,000 and mutation entry in the Revenue record was carried out on 6-7-1970.
4. Constitution Petition No. 96 of 1978 The petitioners Nos. 1 and 2 had purchased 11035 acres of land for a sale consideration of Rs. 7,000 from lust. Aisha and mutation thereof was carried out in the Revenue record on 7-10-1969. The petitioners Nos. 3 and 4 had purchased 1767 acres of land for a consideration of Rs. 15,000 and mutation in respect thereof was carried out in the revenue record on 18-9-1969. The petitioners Nos.
5. 5 and 6 had purchased alongwith Mst. Fatima and Mst. Bachai 4964 acres of land for a sale consideration of Rs. 9,000 and the mutation entry in the Revenue record was carried out on 11-9- 1969.
6. Constitution Petition No. 97 of 1978 The petitioner No. 1 had purchased 287.22 acres of land for a sale consideration of Rs. 6,000 from Mir Yousuf Ali Khan Magsi and the mutation entry in the Revenue record was made on 3-7-1970.
7. The petitioners Nos. 2 and 3 had also purchased barren piece of land from Yousuf Ali Khan Magsi consisting of about 29794 P.
1. Us. Situated in village Machhi for a considera--tion of Rs. 7,000. The sale was completed on 1-8-1970 and the possession of the land was delivered to the petitioner.
8. The petitioners Nos. 4, 5 and 6 had purchased 3912 acres of land from Mir Yousuf Ali Khan Magsi for a consideration of Rs. 15,000 and mutation in respect thereof was carried out on 29-5-1971.
9. It is the case of the petitioners in each of the said petitions that lands were barren, uncultivable and Ghair Mumkin. After the purchase, physical possession of the land was delivered to the petitioners and they brought some portion of the land in cultivable position.
10. Constitution Petition No. 98 of 1978 .
11. The petitioner is were of Sardar Mahboob Ali Khan Magsi. She owns various pieces of land in Sub- Tehsil Jhal Magsi, District Kachhi. Major portion of land was uncultivable. Some of the portions were sold by way of lawful consideration to the persons of Magsi tribe living in the vicinity of the respective lands. The other pieces of land were alienated by way of gifts to many persons and the household servants who have been serving the family from time of their forefathers, in lieu of their past service and mutation in respect of each of transaction was carried out in the name of vendees and donees.
12. The petitioner has got ancestral property situated in Sub-Tehsil Jhal, Magsi District Kachbi. In the settlement operation of 1967-68 some of the land did not belong to the petitioner was also entered in her name. On the representation of such owners, correction was carried out and the land was consequently mutated in favour of the lawful owner. The lands was in continuous and uninterrupted possession and use of those persons. The petitioner never had any concern with the same.
13. Constitution Petition No. 115 of 1978 The petitioner is son of Sardar Mahboob Ali Khan. He owns various pieces of land in Sub-Tehsil Jhal Magsi, District Kachhi. The major portion of land was owned by him was uncultivable and was lying waste, therefore in order to have proper use of them, some of the portions were sold by way of lawful consideration to persons of Magsi trible living in the vicinity of the respective lands, whereas the other pieces of lands were alienated by way of gifts made to various persons and the household servants who have been serving them.
14. After such transfer the petitioner was totally ceased of any right, some of the transferred land was delivered to the time of mutation.
15. Constitution Petition No. 116 of 1978 The petitioner has brought ancestral property situated at Sub-Tehsil Jhal Magsi, District Kachhi. The Settlement operation was carried out in the year 1967-68 and come of the land did not belong to the petitioner was . Also entered in his name whereupon the persons to whom the property has been given, questioned the correction of entries so made in favour of the petitioner. On the representations of the respective owners the corrections were carried out and the land was mutated in his favour.
16. After promulgation of M. L. R. No. 115 of 1972 Mst. Aisha Begum, Mir Yousuf Ali Khan Magsi and other land-owners submitted their declaration forms before the Deputy Land Commissioner, Kachhi and mentioned therein the alienation of sale and the gifts made by the land owners. The matter was scrutinised by the Deputy Land Commissioner, Kachhi who after examining the same forwarded it to the Land Commissioner, Baluchistan alongwith his observations. The Land Commissioner, Baluchistan after satisfying himself validated the alienations made by Mst. Aisha and others and declared them to be in accordance with the requirements of para. 7 (1) (b) of M. L. R. 115.
17. Later on, on the reference of the Land Commissioner. Baluchistan Mr. Y. A. M. Channa scrutinised and approved and validated the alienations. The respondent No. 1 again initiated suo motu proceedings, in exercise of authority under paragraph 29, M. L. R. 115 and vide his order dated 15-11- 1976 declared the transaction made by Mst. Aisha and other landlords as void and defective.
18. According to the respondent No. 1 gifts in favour of non --heirs cannot be validated being hit by first proviso of para. 7 (b), M. L. R.
115. The sale being all in favour of the household servants cannot be regarded as bona fide. No evidence has been adduced in proof of source of income of the household servants and that they had sufficient means to purchase the land.
19. The petitioners being aggrieved by the orders passed by respondent No. 1 have challenged these orders in these Constitutional Petitions, The learned counsel has submitted that respondent No. 1 was not authorised to pass the order impugned in the petitions as the notification issued under paragraph 29 of M. L. R. 115 authorised the Chairman and the Members of Federal Land Commission to exercise jurisdiction under the said para. According to the learned counsel, the said notification specifically provides that the powers under paragraph 2) would be exercised by the Chairman and Members and it cannot be exercised by a Single Member or the Chairman only. In the present case, the respondent No. 1 acted singly and thus he assumed jurisdiction which was not vested in him, and therefore, the order passed by him is without lawful authority. The notification under paragraph 29 of M. L. R. 115 was issued on 23- 10-1973 and it reads as under :- "in exercise of the powers conferred on it by paragraph 29 of M. L. R. 115 the Federal Government is pleased to authorise the Chairman and Members of the Federal Land Commission for the purpose of said lands."
20. The learned counsel in support of his contention has referred to a judgment of this Court in C. P. No. 143 of 1976, Dr. Hamid Hussain Shah Zaidi v. Chairman, E. L. C. And others, and the judgments of Sind High Court and the Lahore High Court. It has been held in Sardar Ashiq Muhammad Khan Mazari v.
21. Chairman, Federal Land Commission, Islamabad (PLD 1977 Lah. 461), the powers under paragraph 29 have been given t6 Chairman and Members to be exercised by all of them and order passed by Chairman sitting singly is an order passed by him completely devoid of jurisdiction.
22. The learned Advocate-General has referred to Ordinance XXIX of 1978 passed by the President on 25-1-1978. According to section 2 of the Ordinance any order passed by the Chairman or by a Member of the Federal Land Commission at any time before the commencement of this Ordinance purporting to be in exercise of the authority of the Federal Government under paragraph 29 of the Land Reforms Regulation, 1972, shall be deemed to have been validly passed and shall have, and shall be deemed always to have had, effect accordingly. Thus according to this Ordinance any order passed by the Chairman or by a Member at any time before the commencement of this Ordinance and purporting to be in the exercise of the authority under paragraph 29 of the L. R. Reg.
23. Has been validated. The learned counsel for the petitioner has submitted that this Ordinance cannot be given retrospective effect for the reasons that it has affected the rights already accrued to the petitioners ; that this Ordinance has been made to set aside the judgment of the High Court passed on such points ; that this Ordinance is not a procedural law, therefore, it cannot be given effect to from a back date. He has referred to Adrian Afzal v. Capt. Sher Afzal (PLD 1969 SC 187) wherein it has been held that general principle with regard to the interpretation of statutes is that if a matter in question being a matter of procedure only, the provisions would be retrospective. On the other band, if it be more than a matter of procedure, if it touches a right in existence at the passing of the Act, then legislation would not operate retrospectively. Before going to consider the question whether the Ordinance in question is only a procedural law and therefore applied retrospectively, the paramount question is whether the law-giver has any authority to give a law taking away the rights of the citizens with retrospective effect. There can be no two opinions that the Legislature is supreme in this matter. The Legislature has also the power to amend the law in such a way as to disturb the judgments of the Courts.
24. The Courts have to interpret the law as it stands. They cannot assume thel jurisdiction which exclusively vests in the Legislature. The authority referred to above and quoted by the learned counsel for the petitioner supports this view. It has been clearly mentioned that in accordance with a long line of authorities extended from the time of Lord Coke to the present day, the legislation which touches the right in existence would not operate retros--pectively unless the Legislature had either by express enactment or by necessary intendment given the legislation retroactive effect. In Hotel Industries (Private) Ltd., Lahore v. Province of West Pakistan through the Secretary, Excise and Taxation Department, Lahore and another (PLD 1978 Lah. 53)--it has been held that an order of competent authority not challenged by party affected, attained finality and the subsequent amendment in law would affect only if there was an express provision to annul the effect of that order. This authority has also been quoted by the learned counsel for the petitioner in support of his contention that by validating the transaction by the Land Commission, the transaction was complete. A transaction passed and closed cannot be set aside by making amendment in law.
25. This authority has negatived the contentions of the petitioner's counsel, therefore, even if a right had accrued in favour of the petitioner by the judgment of the High Court, the Legislature by amending the law can annul the effect of that order. The next case cited by the learned counsel for the petitioner is Mian Rafi-ud-Din and others v. The Chief Settlement Commissioner & Rehabilitation Commissioner and others (PLD 1971 SC 252), it has been observed that - .
26. "The right of action or tire cause of action arising out of a contract or under a statute is the vested right of action or the vested cause of action of the person to whom it accrues, and these, as regards effect of new law on them, stand on the same footing as other sub--stantive rights of title to property or office. Like the existing sub--stantive rights including benefits or advantages that have accrued under statutes and title to property or office, the right of action or the cause of action which, has already accrued cannot be destroyed or impaired by a new law unless that law, by its express provision or by necessary intendment, is retrospective in operation."
27. This authority does not help the petitioner as well-known principle is not disputed that a right accrued to a person can be destroyed by an express provision or by necessary intendment by a new law. In Commissioner of Sales Tax, Karachi v. Messrs Krudd Sons Ltd. (PLD 1974 SC 181) the following principle has been laid down at page 184 :- "The effect of `final determination' of the rights of parties to a litigation was considered by the Privy Council in John Lenin v. Thomas Alexander Mitchell and the principle laid down was that the effect of the judgment which in the `absence of appeal (operates) as a final determination of the rights of the parties rests on the general principle that a man is not to be vexed twice for the same cause of action unless it is not excluded by the Legislature in explicit and un--mistakable terms'. In the instant case, the pendency of the certi--ficated appeal in this Court had destroyed the finality of the High Court's order dated 11-10-1966 and, therefore, was hit by the new dispensation in section 30-A of the Act."
28. The learned counsel for the petitioner submitted that the notification No. XXIX of 1978 issued on 25- 6-1978 could not be issued with retrospective effect. He has relied upon Islamic Republic of Pakistan through Secretary, Ministry of Commerce and Local Government, Islamabad v. Mazhar-ul- Haq and others (1977 SCMR 509) wherein it has been observed that no rule, order or direction, could be made with retrospective effect. Therefore, the direction of Ministry of Finance cannot be applied to the facts of the case. The authority is inapt. An Ordinance has been promulgated and this is neither an order nor a direction. In Rooh Afzal v. Muhammad Umar and others (PLD 1978 Pesh.1) the same view is adopted.
29. The next question to be determined is whether the Ordinance XXIX is a procedural law or not. In Adnan Afzal v. Capt. Sher Afzal it has been held :- "It is obvious that matter relating to the remedy, the mode of trial the matter of taking evidence and form of action are all matters relating to procedure. Crawford too takes the view that questions relating to jurisdiction over a cause of action, venue, parties, pleadings and rules of evidence also pertain to procedure, provided the burden of proof is not shifted. Thus a statute purporting to transfer jurisdiction over certain causes of action may operate retrospectively. This is what is meant by saying that a change of forum by a law is retrospective being a matter of procedure only. Nevertheless, it must be pointed out that if in this process any existing rights are affected or the giving of retroactive operation causes inconvenience or injustice, then the Courts will not even in the case of a procedural statute, favour an interpretation on giving retrospective effect to the statute. On the other hand, if the new procedural statute is of such a character that its retroactive application will tend to promote justice without any consequential embarrassment or detriment to any of the parties incline towards giving effect to such procedural statute retroaectively."
30. The learned counsel for the petitioners next contended that the order impugned in this petition was passed with mala fide intentions. It is a settled proposition that if an order is challenged on the ground of mala fides; the onus is upon the person who has levelled such allegations. In the present case there is no such material on record to substantiate this contention. The learned counsel has not referred to any documents in support of hi contention. He attempted to argue that the amendment in law supports his contention but we have already pointed out that the Legislature has the authority to pass such law and therefore that authority of the Legislature cannot be challenged on the ground of mala fide. In fact the necessity of amendment in law was considered by the President in view of the judgments of the High Court.
31. The learned counsel for the petitioner has submitted that no notice was issued to the petitioners before the passing of order by respondent No. 1. This is not only in violation of the principle of natural justice, but also infringes the provisions of paragraph 29 of M. L. R. 115, which provides that no order shall be passed under this paragraph revising or modifying an order affecting a person unless such person has been afforded an opportunity of being heard. The learned Advocate- General has challenged the correctness of this -contention and referred to the order passed by respon--dent No. 1. The learned counsel for the petitioner has himself appeared on behalf of Mst.
32. Aisha Begum, Mir Yusuf Ali Khan Magsi, Mst. Razia Sultana and Mir Sikandar Ali Khan Magsi before respondent No. 1. They are the persons who had filed their declarations under M. L. R.
115. The case before the respondent No. 1 related to the declaration made under M. L. R. 115 and the declarants were the necessary parties. Their objections were considered by the respondent No. 1. He had heard the counsel for the declarants and, therefore, it cannot be said that no opportunity was afforded to the parties. The persons who had allegedly purchased the land were not necessary parties before the Federal Land Commission. The jurisdiction of the Commissioner was limited to the extent of examining the declaration filed under M. L. R.
115. There is thus no force that the principle of natural justice has been violated in the present case.
33. The Tribunal has specifically stated, on the basis of record that most of the transfers have been made in favour of the household servants of the declarants. There are either gifts or by way of correction of revenue record or by way of sale. The sale price is also inadequate. The Management is still with the declarants and possession has not been transferred to the transferees. These are questions of facts which have been dealt with by the forum competent to decide the same. The decision on a question of fact made by a competent Tribunal can be challenged before the High Court under Article 199 of the Constitution only on the ground if it is a case of no evidence ; otherwise the appreciation of evidence as an appellate Court is not the function of the High Court while dealing with the case in its extraordinary jurisdiction.
34. There is thus no force in the petitions. The same are dismissed with no orders as to costs.