1. ' MUNAWAR ALI KHAN, J.-In Writ Petitions Nos. D-889 of 1981 and D-930 of 1981, the petitioners have sought to challenge the common order of Member, Federal Land Commission (F. L. C.), dated 25-8- 1981. The operative part of the impugned order reads as under: "I have no hesitation in upholding the order of the D. L. C. Hyderabad, who declared Hussainabad Farm as a person in his orders dated 25th September, 1972. The orders of the D. L. C., Tharparkar, declaring Denisar Farm as a 'conglomerate of persons and not a person itself, are erroneous and are hereby set aside. The Denisar Farm will be treated as a person and the land held by it in excess of the limit prescribed by law shall be resumed."
2. ' As common points of law and facts are involved in both the petitions, they are being disposed by this same judgment.
3. ' In Petition No, D-889 of 1981, the petitioner's case is that in 1954 they alongwith the private respondents formed a partnership under the name and style `Denisar Farms' and jointly purchased the agriculture land in question. Their individual shares in the said- land were in proportion to their respective investments. The land was also mutated in revenue record in the names of the partners in accordance with their shares. However, the entire land was pooled for the purpose of joint cultivation under the control and supervision of the management of the partnership. The object was to secure maximum economic benefits to the partners. At the time of promulgation of M. L. R.
4. 115 (hereinafter referred as the Regulation) individual holdings of the partners did not exceed the limit fixed by the Regulation. As such they were not required to file declarations with regard to excess of the land in their ownership or possession. However the management of the partnership as a measure of abundant caution filed the requisite declaration in respect of the land in question.
5. The Deputy Land Commissioner (D. L. C.), Tharparkar, by his order dated 20-7-1972 accepted the plea raised by the partnership that the manager of the aforesaid "Denisar Farms" was not required to file the declaration. Meanwhile the Land Commissioner, Sind while disposing the case of Mst.
6. Nusrat Begum who was co-partner in the above partnership but had subsequently surrendered her share in favour of other partners on receiving cash consideration, took a contrary view in his order dated 16-6-1972. Although the petitioners/private respondents were not party in that case, they being affected by the order of the Land Commissioner, Sind, challenged the same in appeal before the Chief Land Commissioner who by his order dated 26-6-1973 held that the "Denisar Farms" was not a 'person' within the definition of the term mentioned in para. 2(7) of the Regulation.
7. The Chairman, Federal Land Commission purporting to exercise suo motu revisional powers conferred by para. 29 of the Regulation upset the above order of the Chief Land Commissioner, simultaneously upholding the order of the Deputy Land Commissioner (D. L. C.), Hyderabad in respect of "Hussainabad Farms" which is the subject-matter of the writ Petition No, D-930 of 1981 that the said Hussainabad Farms was a "person" for the purpose of the Regulation, vide order dated 2-12-1975.
8. ' The Petition No, D-930 of 1981 pertains to "Hussainabad Farm" which is also a partnership entered into by the petitioners and some other persons. The said partnership was constituted in 1955 and the partners had purchased agricultural land jointly. Their names were however entered in the revenue record as owners of their individual shares. The object of this partnership also was to pool the whole land so that it could be cultivated jointly for maximising the produce for the benefits of the partners. Pursuant to the promulgation of the Regulation, the management of the "Hussainabad Farms" filed a declaration before the Deputy Land Commissioner (D. L. C.), Hyderabad as a precautionary measure to avoid incurring punishment in the case of the default, even though it held the view that the partners being the owners of their respective shares of the land, the management was not required to file the declaration. As for the partners the petitioners' case was that they too were not under legal obligation to file declarations as their individual holdings did not exceed the ceiling of the land fixed by the said Regulation. However, the D. L. C., Hyderabad by his order dated 25-94972 declared the "Hussainabad Farm" as a "person", and allowed it to retain the land only upto the specified limit, holding further that the area in excess of the said limit would be resumed. This order was challenged in appeal before the Land Commissioner who relying upon the decision of the ChierLand Commissioner dated 26-6-1973 in the case of Mt. Nusrat Begum set aside .The order of the D. L. C, Hyderabad, vide order of the Land Commissioner dated 28-2-1974. Even though the case was remanded to the D. L. C., Hyderabad for fresh decision, he once again by his order dated 6-6-1974 reiterated his earlier order mainly on the ground that the Press Note SLC-1/72/1272, dated 10th May, 1972 issued by the. Sind Land Commission had escaped the notice of the Chief Land Commissioner whose order referred to above was, therefore, not in consonance with the clarification made in the said press note.
9. Consequently the D. L. C., Hyderabad again held the, Hussainabad Farm" as a person. This order too was appealed against before the Land Commissioner who by his order dated 10-10-1974 vacated the same, remanding the case back to the D. L. C., Hyderabad for reconsideration in the light of the Chief Land Commissioner's order dated 26-6-1973. It was at this stage that the Chairman Federal Land Commission, invoked suo motu powers of revision and as stated above he upheld the order of the D. L. C., Hyderabad.
10. ' The above order of the Chairman, F. L. C. Was called in question in Writ Petition No, 9 of 1976 which was allowed on the ground that the power under para. 29 of the Regulation delegated to the Commission could not be exercised by the Chairman or any member of the Commission sitting singly. The case was accordingly remanded to the Commission for fresh decision. Meanwhile Land Reforms Regulation (Validation of Orders) Ordinance, 1978 (Ordinance XXIX) was promulgated and the Federal Land Commission in view of the said Ordinance ignored the order of the High Court and proceeded to issue directions for resumption of the land. Consequently a second Writ Petition No, 1125/76 was filed wherein the latest action of the Federal Land Commission was challenged. By the judgment dated 7-10-1979, the petition was accepted holding that the effect of remand of the case was that the whole case stood reopened and, therefore, the F. L. C. Was required to dispose the entire case in accordance with law. Thus, on the case being remanded second time, the impugned order came to be passed.
11. ' We heard arguments at the bar for two days. In course of the arguments, we are also taken through a mass of written material relevant to disposal of the two petitions in hand. The points highlighted by the learned counsel for the petitioners may be summarized as under :-
(1) The two partnerships designated as 'Denisar Farms' and 'Hussainabad Farms' were not a 'person' as defined under para. 2(7) of the Regulation and, therefore, they are not required to file declaration in respect of the land under their control and management.
(2) If the partners own the land in question, then the Firm cannot own the very same land.
12. Moreover, para. 8 of the Regulation implies that the law is concerned with the individual irrespective of the capacity in which he owns or possesses the land and it contemplates the possibility of his having more than one such capacity.
(3) The definition of a 'person' mentioned in the Regulation covers all those individuals and institutions which are intended to be included and, therefore, the omission of 'Firm/partnership' from the definition is quiet significant and is indicative of the intention of Legislature.
(4) The press note issued by the Sind Land Commission clarifying the scope of the definition, though correctly lays down the principle inasmuch as that a 'person' as defined in the Regulation includes those who in law constitute a separate legal entity, yet gives an erroneous example of 'Firm' as having such juridical personality. Accordingly the notification being in conflict with the Regulation is to that extent null and void,
(5) On coming into force of Land Reforms Act II of 1977, the pending proceedings including the proceedings in this case had abated and the notification, dated 23rd September, 1978 whereby the abated proceedings were revived was defective and invalid for variety of reasons: firstly it did not specify cases or classes of cases sought to be revived; secondly it was issued after more than a year from promulgation of the relevant law and as such was applied retrospectively which is not legally permissible; thirdly it had the effect of repealing the very provision of law under which it was issued.
13. ' On the other hand the submissions made by the learned counsel for the official respondents were as under:-
(a) That the words: "association or body of individuals" used in the definition of 'person' cover partnerships and, therefore, the two partnerships involved in these petitions are nothing but a 'person'.
(b) That the member Federal Land Commission while hold fig the said partnerships as "person" in the impugned order has not given any finding that the land in question is owned or possessed by these partnerships or that in consequence the excess area held by them will be resumed. In absence of such finding the apprehension of the petitioners is unfounded and accordingly the petitions are not maintainable.
(c) That although pending proceedings abated by force of section 25 of the Land Reforms Act, 1977, they were kept alive by Government notification, dated 23rd September, 1978 which was validly issued in exercise of powers conferred by the aforesaid section. That all cases of Revision were saved by the said notification clearly shows that these cases were saved as a class of cases.
(d) That the power of issuing notification saving the pending cases was manifestly retrospective in nature as the notification could only be issued subsequent to promulgation of Land Reforms Act, 1977 and as such the notification could not be attacked on the ground of delay made in issuing the same.
14. ' It is not disputed that "Denisar Farms" and "Hussainabad Farms" are two partnerships which have come into being as a result of two separate agreements between the partners thereof. It is also not denied that the object of the said farms was to carry out joint cultivation of the individual holdings of agricultural land pooled together by the partners so that greater returns could be secured to them in consequence of their joint venture. Before examining the extent and scope of their liability under the Land Reforms Scheme envisaged by the Regulation, it would be necessary first to understand the legal status and position of the said partnerships. As pointed out above the basis of these partnerships is the agreements between the partners. A look at the agreements would reveal that inter alia, it was agreed between the signatories of these documents that "the agricultural land acquired or to be acquired shall be deemed to be the property of the individual partners rateably and each partner shall be entitled to get his share of land partitioned at at any time.
15. ' A partner may at any time sell or transfer any part or whole of his share in land to any other partners.
16. ' The profit or loss of the Farm shall be shared among the partners according to their share in the land purchased or to be purchased from time to time.
17. From the above stipulations contained in the agreements, the intention of the partners can be spelt out. It is abundantly clear from the said assertions that the partners agreed to surrender their shares of land to the Management of the partnerships only temporarily and for the limited purpose of sharing profits and losses of the farms. They could not be attributed with intention of permanently divesting themselves of their right of ownership of the land. Since the ownership of the partners over the land remained intact, the partnership or the Management thereof could not be held to have become owner of the said land only because it came under its control and management.
18. ' In the above context we may refer to the definition of partnership as given in the Partnership Act, 1932. It reads as under : "4'Partnership' is the relation between persons who have agreed to share the profits of a business carried on by all or any of them acting for all.
19. ' Persons who have entered into partnership with one another are called individually 'partners' and collectively 'a firm' and the name under which their business is carried on is called the 'Firm name'."
20. ' It may also be pertinent to refer to sections 5 and 6 of the Partnership Act. They read as under : "5The relation of partnership arises from contract and not from status ; and, in particular, the members of a Hindu undivided family carrying on a family business as such, or a Burmese Bhuddhist husband and wife carrying on business as such are not partners in such business.
6. In determining whether a group of persons is or is not a firm, or whether a person is or is not a partner in a firm, regard shall be had to the real relation between the parties, as shown by all relevant facts taken together."
21. From the above provisions of law the following attributes of partnership can be deduced :
(1) It does not emanate from status.
(2) It is the creation of agreement between individuals.
(3) It is a relation between individuals who have entered into agreement.
(4) Its purpose is to share profits of a business.
(5) The individuals bound in relation of partnership are individually called partners and are collectively called a firm.
(6) Its business must be carried on by all or any of the partners, acting for all.
(7) The name under which its business is carried on is called firm name.
22. ' Keeping the above elements in view, we have to see what can be the position of partnership/firm in legal terms. In this connection we may also consider some authorities cited at the bar. The first case referred to in this connection is of Motal Bai v. Abdul Aziz and others (1) wherein Noorul Arfin, J.
23. After reviewing the entire case law on the subject observed : "My view, therefore, on the first question is that though a firm may possess some attributes of a personality, it is only a collective name of its members and is not a legal person or entity, distinct and separate from partners."
24. ' The other case is an Indian authority Dulichand v. I. T. Commissioner, Nagpur (2). It was held :- "It is clear from the foregoing discussion that the law, English as well as Indian, has, for some specific purposes, some of which are referred to above relaxed its rigid notions and extended a limited personality to a firm. Nevertheless the general concept of partnership firmly established in both systems of law, still is that a firm is not an entity or a 'person' in law but is merely an association of individuals and a firm name is only a collective name of those individuals who constitute the firm., In other words a firm name is merely an' expression, only a compendious mode of designating the persons, who have agreed to carry on business in partnership."
25. ' We may also quote herein below what Mr. S. T. Desai has said in his commentary on Partnership Act (page 17,1956-Edition) : "Although in mercantile usage a firm is deemed to have an existence distinct from the members composing it, the strictly legal view is that it is neither a legal entity nor is it a person."
26. ' Similarly Mr.
0. P. Agarwala in his celebrated work on the Indian Partnership Act (page 45, 1965 Edition) has stated : "With partnerships the case is otherwise ; the members of these do not form collective whole distinct from the individuals composing it, nor are they collectively endowed with any capacity of acquiring rights or incurring obligation. The rights and liabilities of a partnership are the rights and liabilities of the partners and are enforceable by and against them ideally."
27. What emerges from appraisal of the above authorities is that partnership has no independent existence or personality separate from its members. It is just a collective name of group of individuals who have agreed to G jointly own property and do business to share the profits. Its rights and liabilities are the rights and liabilities of the partners and are enforceable by or against them individually.
28. Having arrived at the above conclusion we now proceed to examine if for the purpose of land reforms, it falls within the definition of "person". As provided in para. 8 of the Regulation no 'person' shall, at any time, own or in any capacity possess land in excess of the ceiling mentioned therein.
29. The question is whether the partnerships involved in the present petitions are a 'person' within the meaning of the above para. The word `persons' is defined in para. 2(7) of the Regulation as under : "Person' includes a religious, educational or charitable institution, every trust, whether public or private, a Hindu undivided family, a company or association or body of individuals, and a co- operative or other society, but does not include a local authority, a university established by law, a body incorporated by the central or provincial
(1) P T. D 1968 Kar. 635 (2) AIR 1956 SC 354 (358) ' law, or an educational institution, a livestock farm or a co-operative fanning Society exempted by Federal Government from operation of the Regulation."
30. ' It would be noticed that partnership/firm does not find mention in the above definition even though 'company' has been expressly included and a body incorporated by central or provincial law has been specifically excluded. However, according to the learned counsel for the respondents `partnership' is covered by the words : association or body of individuals", used in above definition of 'person' and consequently it is nothing but a person. He further submitted that while interpreting the definition of `person', construction as is manifested by plain words may be placed on it. In support of his argument he relied upon the passage from Maxwell's Interpretation of Statutes 12th Edition, page 208, as reproduced in Pakistan International Air Lines V. .Sind Labour Court (1). It reads as follows :- "A sense of possible injustice of an interpretation ought not to induce Judges to do violence to well- settled rules of construction but it may properly lead to the selection of one rather than the other of two reasonable interpretations. When the language of the legislation H admits of two constructions and if construed in one way would lead to obvious injustice, the Courts act upon the view that such a result could not have been intended unless the intention to bring it about has been manifested in plain words."
31. ' There is no dispute with the proposition laid down in the above passage. The question however is whether partnership is "an association or body of individuals" as mentioned in the definition of 'person'. The learned counsel for the official respondents expressed the view that partnership being an association or body of individuals is a person within the meaning of para. 2(7) of the Regulation.
32. He built this argument on the strength of three Indian Authorities. In the first case of I. T.
33. Commissioner v. S. V. Angidi Chettiar (2) it was held : "A firm is manifestly a body of individuals and would, therefore, fall within definition of 'person' ".
34. ' The second case is reported as B. D. M. C. Importer's Group v. I. T. C.-Cum E. P. T. M. P. (3) wherein it was observed, "Suffice it to say that before any group of persons can be called an association of persons it must be established on facts that they are in the nature of partners i,e, in our opinion the established facts of the case must at least lead to an inference that the members of the group of their volition or free will have joined in a venture with a view to earn profits."
35. ' The third Case is of Muhammad Noorulla v. I. T. Commissioner (4) wherein it was held :- "The test there laid down was that as soon as there was election to retain the property and manage it as a joint venture, the persons so electing became an association of individuals."
36. ' It would be noticed that above three authorities pertain to income-tax cases. In the Indian Income-tax Act the definition of "person" is materially different from that given in the Regulation.
37. Moreover the Income-tax Act is a fiscal law. The object it seeks to achieve is entirely different from
(1) PLD 1980 SC 323 (2) AIR 1962 SC 970
(3) AIR 1957 Nag. 4 (4) AIR 1961 SC 1043 ' that sought to be achieved under the Regulation. Accordingly construction put on the word 'person' used in the Indian Income-tax Act cannot be helpful in interpreting the same word (i. e.
38. Person) used in the Regulation. The schemes of the two laws being totally different, the interpretation of the word "person" used in these laws cannot be the same. This is with regard to first mentioned case. SO far other two cases are concerned, the facts and circumstances of these cases are distinguishable from the facts and circumstances of the present cases. Accordingly the views expressed in the reported cases cannot be applicable in the cases in hand. Moreover as stated in the foregoing paragraphs, partnership cannot be held to be covered by words "association or body of individuals." As has been correctly argued by the learned counsel for the petitioners, the words "association or body of individuals" seem to have been borrowed from General Clauses Act wherein they are mentioned despite the knowledge that they are not applicable to partnership. It has been repeatedly held by the superior Courts that a firm is not a person as defined in the General Clauses Act. Even otherwise the above words relate to an association or/ body of individual which exists as such in legal sense. As for partnership, it is non- entity having no existence or personality separately from its members. It has no rights or liabilities.
39. All rights and liabilities relating to partnership are enforceable by or against its members individually.
40. ' Reference has also been made to press note issued by the Sind Land Commission as contained in its Notification No, SLC.1/72/1272, dated 10th May, 1972. It reads as under :- ' The Land Commission, Sind, is pleased to clarify for the information of all concerned that the definition of the word `person' as contained in the Regulation includes only such bodies or individuals as are separate legal entities, such as a firm, a Hindu. Undivided family, a society or an association with its bye-laws- etc., but it does not include members of a family (not being members of a Hindu undivided family), who may be owning shares in land or a holding, or the heirs of a deceased person who have not yet partitioned the estate of the deceased and taken possession of their respective shares. In the case of the latter two classes of persons, each individual will be deemed to be a person to be owning the share or area of land to which he is entitled."
41. The clarification made by the Sind Land Commission by the above press note is nothing but an attempt on its part to give interpretation of the word "person". The question is whether the said commission was empowered to do so. Part 2 of the Regulation deals with constitution and powers of Land Commission. Para. 4(3) of the Regulation no doubt states that "A commission of a province shall have all the powers necessary for the implementation of this Regulation within the province."
42. We are doubtful if such power includes the power of interpreting any provision of the Regulation which is obviously the function of Courts. In our opinion the above press note is not legally binding.
43. Assuming that it has a binding force, the learned counsel for the petitioners is correct in pointing out that it is self-contradictory. On one hand it lays down a correct principle inasmuch as that 'person' includes only such bodies or individuals as are separate legal entities but on the other hand wrongly illustrates the said rule by mentioning "firm"-of one of such separate legal entities. As has been pointed out above 'firm' is not an entity, nor, has it separate legal personality or existence apart from its members. In this connection we agree with the learned counsel for the petitioners that even otherwise we have to look to that part of the clarification made in the above press note which lays down a principle. We also agree with him that illustration given in the same breach of clarification cannot be construed as a part of the principle. On this point the learned counsel has placed reliance on two authorities namely Muhammad Afzal v. Commissioner, Lahore Division (1) and Bengal Nagpur Railway Co. Ltd. v. Ruttanji Ramji and others (2).
44. ' In the case of Muhammad Afzal it was held :- "If the laws (Continuance in Force) Order was designed both to prevent chaos and to establish an orderly Government with a legal sanction behind it then it would be only logical to assume that to achieve this object it vested the power of alteration of existing laws in the Supreme authority namely the President and co-equality in the Chief Administrator of Martial Law and in no one else. It seems to us, therefore, that in promulgating these two orders the Martial Law Administrator Zone 'B' clearly acted beyond his competence to the extent of repugnancy of existing laws."
45. ' In the Indian case the Privy Council observed :- "The illustration does not confer upon a creditor a right to recover interest upon a debt which is due to him, when he is not entitled to such interest under any provision of law. Nor can an illustration have the effect of modifying the language of the section which alone forms the enactment."
46. Apart from above, the argument of the learned counsel for the petitioners that an individual partner on one hand and the firm as distinct from that partner on the other cannot simultaneously own a property, has a lot of force in it. The legal position of partnership is so clear that it does not admit of any controversy on the point that a partner on joining partnership is not divested of his ownership of the property he gives under the control and management of the partnership. That being so, the question of vesting of the ownership of the same property in the partnership or the management there of would not arise. Thus, if "partnership" does not own any property, the restrictions contained in para. 8 of the Regulation on owning of the land beyond fixed ceiling and the question of resuming the excess area of the land would not be applicable in the case of partnership. Therefore, the word "person" used in the said para. 8 obviously does not cover 'partnership'. It is however true that para. 8 does not only refer to a person owning the land but also speaks of a person possessing the land. The question arises if partnership is in possession of the land surrendered by the partners for the purpose of joint cultivation. Assuming that the land which is the property of the partners when surrendered by them for joint cultivation comes under superintendence and management of the partnership, still by that reason partnership cannot be held to possess the said land on its own behalf. Its possession of the land cannot be in the nature of possession of a lessee or mortgagee. If the partnership is said to possess the land, its possession is on behalf and for the benefit of its partners unlike the possession of lessee or mortgagee which is clearly for the benefit of the latter. Even if the partnership is held as a 'person' possessing the land, then, as provided in para. 13(3) of the Regulation, the area in excess of the fixed limit in its possession will
(1) PLD 1963 SC 401 (2) AIR 1958 P C 67 ' revert to its real owners namely partners. But that again is to be done when the excess area is possessed by a 'person' for his own benefit. Otherwise, as in the instant case, co-operative effort of joint cultivation with all economic benefits flowing therefrom will receive a serious set back. Surely it cannot be the intention of the land reforms. In order to construe the word 'person' in true perspective, we cannot lose sight of the intention of the framers of the Land Reforms Regulation.
47. The intention of this legislation is discernable from its preamble which clearly shows that the idea is to avoid concentration of wealth in a few hands and foster its equitable distribution and promote the lot of peasantry. Keeping the above ideal in view, the partnership cannot be held as a 'person' in whose hands the concentration of wealth is to be discouraged.
48. For the above reasons we have come to an irresistible conclusion that partnership/firm is not a "person" either owning or possessing the land for the purpose of para. 8 of the Regulation. Although its sister organizations such as company or corporation find specific mention in the definition of "person", partnership is conspicuous by its omission from the said definition. We are of the considered view that the omission of partnership from the definition of a "person" is not without significance. The omission appears to us to be deliberate and intentional. As both the petitions are to succeed on the above grounds, we need not go into the question of abatement of these cases which were said to be pending at the time of the promulgation of the Land Reforms Act, 1977.
49. Accordingly we allow both petitions with no order as to costs, declaring the impugned order dated 25-8-1981 passed by Member, Federal Land Commission (Mr. Amir Uusuf Ali Khan) to be without any lawful authority and of no legal consequence.