ZAFFAR HUSSAIN MIRZA, J.--This is an appeal by leave of this Court from the judgment of a Division Bench of the High Court of Sind, dated 5th July, 1980, whereby the constitutional petition filed by the appellants was dismissed. The facts briefly narrated are that appellants Nizamuddin Yahya and his mother Mst. Sharfunnisa are the son and widow of one H. M. Yahya, who died at Karachi on 3rd August, 1973. H. M. Yahya who shall be referred to hereinafter as the "deceased" had migrated to Pakistan from Bihar (India), where before his migration he had already succeeded along with other heirs to certain agricultural land upon the death of his father in 1945. In the estate of his father which devolved upon the deceased his share was 7 Annas in a rupee. On his migration to Pakistan, the deceased submitted his claim in respect of the aforesaid land left by him in India, which was verified on 15th September, 1959. In the meantime, however, he had been allotted 1191 acres of agricultural land against his Claim Form IRIV No. 139/2756, dated 1st October, 1957. Subsequently his entitlement was reduced by virtue of the provisions of Martial Law Regulations 84, 89 and 91, and the same was determined at 157.151 acres equivalent to 5350 P. I. Us. Out of the total holding, the deceased surrendered and repurchased 232.191 acres equivalent to 36650 P. I. Us. The deceased had also installed a tube-well on the lands for the purposes of irrigation.
2. On the promulgation of Land Reforms Regulation, 1972, the Deputy Land Commissioner by his order, dated 30th May, 1972,.Treated his entire holding of 389.35 acres as acquired land while in service as contemplated by paragraph 10 of the said Regulation, with the result that he was allowed to retain only 100 acres and the remaining land was resumed. He challenged the order in an appeal which was dismissed except that he was allowed to retain 1/6th of 100 acres as an additional area on the account of tube-well which he had installed vide order, dated 24th August, 1972. The deceased thsn filed a revision before the Chief Land Commissioner who remanded the case to the Land Commis--sioner, Sind, for a fresh decision.
3. On remand, the Land Commissioner, Sind, by order dated 10th May, 1973, allowed the deceased to retain 3600 P. I. Us. Being 10 of the original land allotted to him, in accordance with Notification No. SLC-3668/73/837, dated 26th February, 1973, as land "having devolved on him by inheritance".
The remaining area comprising 90 % of the allotted land was treated as acquired land under paragraph 10(1) of Land Reforms Regulation, 1972. The deceased again filed a revision before the Chief Land Commissioner, Sind, but during the pendency of the proceedings, he died and his legal representatives, the present appellants were substituted to represent him. This revision was also dismissed by order, dated 2nd October, 1974, on the basis of Notification No. SLC/3668/ 72/5317, dated 2nd October, 1973, according to which lands obtained by Government servants in settlement of their claims were to be treated as self --acquired land for the purpose of paragraph 10 of Land Reforms Regulation (M. L. R. 115). It may be stated that the last mentioned notification cancelled the earlier notification of Sind Land Commission, dated 26th February, 1973. Therefore, while dismissing the revision of the appellants the Chief Land Commissioner, Sind, on the basis of the last mentioned Notification, dated 2nd October, 1974, purporting to exercise suo moto revisional jurisdiction vested in him under rule 11 of the Land Reforms Rules, 1972, further directed that the entire holding of the deceased would have to be treated as self-acquired property. Accordingly he directed the Deputy Land Commissioner to redetermine the permissible holding of the deceased in these terms.
4. The appellants being aggrieved challenged the order of the Chief Land Commissioner, Sind, by means of a constitutional petition in the High Court of Sind but as already stated did not succeed as the High Court held that the holding of the deceased constituted land acquired against his own independent claim and by repurchase, with the result that the same fell within the mischief of the impugned Notification, dated 2nd October, 1973.
5. Leave was granted to consider the following contentions :-
(i) that the case of the appellants was covered by the proviso t subsection (1) of paragraph 10 of the Regulation, as the deceased was not only entitled to retain 100 acres but also, in addition to it land obtained by repurchase ;
(ii) that the earlier notification, dated 26th February, 1973, having become a part of the Land Reforms Regulation by virtue of para. 4(8) of the same, the subsequent notification, dated 2n October, 1973, could not take away his vested rights under the earlier notification ; and
(iii) in any case the last mentioned notification was ultra vires the powers of the Land Commissioner as it was not issued for the purposes mentioned in para. 4(8) of Regulation.
6. In support of the appeal Mr. Khalid Ishaque learned counsel appearing for the appellants, urged that the learned Judges of the High Court had erred in interpreting the provisions of para. 10 of Land Reforms Regulation. In his submission the restrictions on the holding of land laid down in clause (1) of para. 10 are not applicable in the instant case as he had not himself acquired any land taut the land had devolved upon the deceased from his father in 1945, by inheritance.
Elucidating his contention further he submitted that the proviso to clause (l) of para. 10 has the effect of permitting a Government servant, to retain in addition to 100 acres of land, any land which has devolved on him by inheritance or any other land, not exceeding the area of land so inherited, which has been acquired by him, in lieu of the land so inherited. Learned counsel emphasised that the reach of the proviso is not confined to any time frame, and extends to inheritance in the past, even before the establishment of Pakistan, in the period prior to 14th August, 1947. In the premises the submission of the learned counsel was that the holding of the deceased at the material time comprised land which had been acquired by him in lieu of inherited land which was left behind by him in India, and therefore, the same did not fall within the mischief of sub-para. (1) of para. 10 of the Regulation.
7. The relevant part of paragraph 10 which requires interpretation in order to consider the argument of the learned counsel is reproduced as under :- "10. Acquisition of land by Government servants.-(1) No person who is or has been in the Civil Service of Pakistan and has at any time between the first January, 1959, and two years of his ceasing to be in service, acquired any land or any right or interest therein, by any means whatever, either in his own name or in the name of any of his heirs or any other person, shall own or possess any land exceeding one hundred acres Provided that, subject to the other provisions of this Regulation, any such person may, in addition to one hundred acres of land, own or possess any land which has devolved on him by inheritance or any other land, not exceeding the area of the land so inherited, which has been acquired by him, in lieu of the land so inherited, whether by exchange or sale, either in his own name or in the name of any other person.
Explanation.
(2)
(3)
On a plain reading of the above provisions it appears that the object underlying para. 10 of the Regulation was to control the acquisition of land made by the civil servants after 1st January, 1959, and during the period of the tenure of their service as such civil servants and to restrict I to 100 acres. The proviso to sub-para. (1) makes a further concession in addition to 100 acres, to such affected civil servants, allowing them to retain, land which has devolved on them by inheritance or if the inherited land has already been disposed of, then equal area acquired by any such civil servant in lieu thereof, by exchange or sale in his own name or in the name of any other person.
Having regard to the provisions of para. 10 a a whole, it is quite clear that the same become attracted to the case of a civil servant provided he has acquired land, in such capacity during the specified period "by any means whatever". Further, the proviso will be attracted only to cases which first fall under the main enacting part o 1 sub-para (1) of para. 10. This is clear from the use of the words "m~ addition to 100 acres of land". The question that arises for consideration/ is as to what the word "acquires" as used in sub-para. (1) connotes. I 1t will be seen that the word "acquires" has been used twice. Once in the train provision and once in the proviso. Since the policy of law, as plainly revealed by the proviso, was not to place the land which comes to devolv upon a civil servant by inheritance or land acquried by him in lieu thereof under the restrictions primarily applied to civil servants, it is obvious that acquisition of land by inheritance or in lieu of such inherited land does not fall within the contemplation of the word, "acquires" as used in the enacting part. Therefore, by a purely logical process, it is easy to say that the disqualification which turns on the restrictive provisions, does not relate to the act of acquiring land, if it is relatable to inheritance provided the limit area wise remains the same as was inherited. To illustrate, if a civil servant inherits a certain area of land and subsequently disposes it off, and in its stead purchases equal area, even if this acquisition is during the stipulated period of his service, as such civil servant, his case does not fall within the mischief of sub-para. (1) of para. 10. There would, therefore, be no question, in such a case, to allow him to retain such inherited o other land purchased in lieu thereof, in addition to 100 acres, because the only land acquired by him is relatable to inheritance.
8. The question raised before us is, therefore, that deceased H. M. Yahya had acquired land in lieu of lands inherited by him which were left behind in India, consequently provisions of para. 10 were not attracted to his case at all. The admitted position is that the father of the deceased died in 1945, while he was still in India and certain share in the land left by his father devolved upon him by way of inheritance. The land to which the deceased succeeded was, however, left in India while he migrated to Pakistan. Now, the deceased could take his case out of the mischief of para. 10 only if he could establish that the transfer of land in his favour by the Settlement Department, by virtue of his verified claim, was, an acquisition in lieu of his inherited land by "exchange of sale". The emphasis has been provided to these words, in order to bring out clearly the requirement of law that the beneficial provisions contained in the proviso would be extended only to the land acquired by these two means, namely, exchange or sale. In order to determine whether the lands settled upon the deceased were in lieu of the land left by him in India, it would b necessary to consider the nature of the right by which such lands are transferred under the Settlement Laws.
9. The lands which were allotted to displaced persons under the Settlement Laws were not transferred to them in lieu of land left by them in India. This proposition is well-settled by now in view of the decision of this Court in Mian Rafi-ud-Din and others v. The Chief Settlement and Rehabilitation Commissioner and others (PLD 1971 SC 252There is an illuminating discussion on the object and scope of the evacuee laws in this judgment and on a closer examination of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, the majority decision holds that a claimant displaced person is in the position of a vested beneficiary qua the proper yet in the compensation pool but has no vested right to a particular property therein. Following observations on page 273 of the report are relevant for our present purposes "Again as was pointed out in the case of Syed Abdur Rashid v. Pakistan and others PLD 1962 SC 42, there was no question of displaced persons coming to Pakistan from territories which now constitute India being entitled as of right to get properties in Pakistan in lieu of properties left by them in India. The evacuee laws were designed purely to alleviate the hardship and misery of as large a number of displaced persons as possible who had been uprooted as a result of the setting up of the two Dominions of India and Pakistan by rehabilitating them and in this sense too it was `fallacious to conceive of a claim . . . . . As being in the nature of a right or interest in property'. It was rather a question `of purely granting a benefit, or a privilege' and it was, therefore, within the competence of the authorities to determine as to who were the persons best fitted for the grant of such benefit."
On a parity of reasoning the same would be the position of claimant displaced persons in respect of land under the Displaced Persons (Land Settlement) Act, 1958. It cannot, therefore, be argued with any justification that the land that was allotted to deceased H. M. Yahya was acquired by him in lieu of inherited land which he left behind in India. That land must have been expropriated by the Government of that country as evacuee property and utilized as such for purposes similar to the evacuee and the Settlement Laws in our country. By no stretch, therefore, can the property given to the deceased as an allottee be construed as having been acquired by him in lieu of inherited land left by him in India. At any rate the acquisition contemplated in the proviso to para. 10(t) is by "exchange o sale", whereas in this case it was by way of Settlement under the scheme. The learned Judges of the High Court had also rejected this contention on somewhat different grounds but in doing so they had also taken into consideration the fact that the inheritance received by H. M.
Yahya opened in 1945 prior to the establishment of Pakistan. We agree that other conditions being satisfied the mere fact that the inheritance whereby land devolves upon a person occurred prior to the establishment of Pakistan will have no material bearing on his right to claim benefit under para.
10. But as discussed above we find the land received by H. M. Yahya by means of allotment under Settlement Laws cannot be held to be acquisition in lieu o inherited land left in India. Therefore, there is no substance in the first contention of the learned counsel.
10. The entire foregoing discussion sufficiently demonstrates that the question whether land which was acquired by way of allotment under the schemes framed under the Settlement Law, was or was not an acquisition within the mischief of para. 10 of the Regulation was a question which seemed to have created difficulty in giving effect to the purposes of the Regulation. Even otherwise this was indeed a difficult question as to the operation of the Regulation and there was no express provision dealing with this question, so far as the applicability of para. 10 is concerned.
Undoubtedly, therefore, this could be the subject-matter of exercise of powers vesting in the Sind Land Commission under sub-para. (8) of para. 4 of the Regulation which is in the following terms :- "Para. 4(8).-Where any matter is not provided for in this Regulation, or any difficulty arises in giving effect to the purposes of this Regulation, a Commission may, with the approval or on the direction of, the President, make such provisions in respect thereof as it thinks fit, or as may be directed by the President, and such order shall be deemed to form a part of this Regulation and have effect accordingly."
The Sind Land Commission, in exercise of the powers issued Notification No. S.L.C. 3668/72/837, dated 23rd February, 1973, which reads as under:- "In exercise of the powers conferred on it under sub-paragraph (8) of paragraph 4 of Land Reforms Regulation, 1972 (M. L. R. 115), as amended and with the prior approval of the President of Pakistan, the Sind Land Commission is pleased to clarify that only 10(ten) per cent of the land which was actually allotted to a refugee Government servant in satisfaction of his verified claims pertaining to non-agreed areas should be treated `having devolved on him by inheritance'. The balance of 90 (ninety) pre cent for which option to purchase was exercised by such Government servants, should be treated as `acquired' land as contemplated in paragraph 10(1) of M. L. R. 115."
The main contention of the appellants was based on the aforesaid notification issued by the Sind Land Commission. As already mentioned, H. M. Yahya was given the benefit of this notification by the Land Commission, Sind, vide his order dated 10th May, 1973, whereby the deceased was allowed to retain 3600 P. I. Us., which formed 10 % of the lands allotted to him originally and it was treated in obedience to the mandate contained in the notification, as land devolved on him by inheritance.
Obviously, therefore, the rest of the land surrendered and repurchased by him in terms of the scheme under M. L. R. No. 91, was treated as land acquired by the deceased as civil servant which was hit by sub-para. (1) of para. 10 under which he was entitled out of that land to retain 100 acres.
It was contended by the learned counsel that on the passing of the aforesaid order by the Land Commissioner the deceased had acquired a vested right--4o the benefits accrued in his favour under the notification, dated 26th February, 1973, which could not be taken away by any subsequent change of law by means of a fresh notification in exercise of powers under sub-para.
(8) of paragraph 4 of the Regulation. The reference was to the second notification, dated 2nd October, 1973, issued by the Sind Land Commission cancelling the earlier notification which is in the following terms :- "No. S. L. C. 3668/72/5317.--In exercise of the powers conferred on it under sub-paragraph (8) of of paragraph 4 of Land Reforms Regulation, 1972 (M. L. R. 115), as amended and with the prior approval of the Federal Government, the Sind Land Commission is pleased to clarify that all the lands obtained by Government servants in Settlement of their claims, whether they come from agreed or non-agreed area shall be treated as self-acquired land for the purpose of paragraph 10 of M. L. R.
115.
(2) Sind Land Commission Notification No. S. L. C. 3668/72/837, dated 26th February, 1973, issued in this respect previously, shall be treated as withdrawn and cancelled."
On an analysis of the provisions of para. 4(8) it appears plain that this is a case of statutory delegation of legislative power, to be exercised by a commission constituted under the Regulation subject to the supervision and control of the Central Government. In a chain of decisions, reviewed in Zibtxn Textile Mills Ltd. v. Central Board of Revenue and others (PLD 1983 SC 358this Court has held that the Legislature is competent to delegate power toy subordinate or outside authorities for carrying the laws enacted by it into effect. Within the limits, illucidated in these decisions, which are not) necessary to mention since the validity of the provisions is not in question it has been held that delegation of legislative power is lawful. A common example of such delegation is the grant of authority to executive officers and administrative boards, to adopt and promulgate rules and regulations. The nature of the provisions under consideration is similar, the object being to enable the commissions which have been charged by para. 4(1) of the Regulation, with the duty of carrying out its purposes, to have the residual power to issue orders where any matter is not provided for or any difficulty arises in giving effect to the purposes of the Regulation. The content and scope of this power is on the same plane as the rule making power under the mandate of a statute. 1t is now well-settled that a statutory Notification cannot be given retrospective effect, so that it will always be prospective in operation. Another principle which is now firmly postulated is that a x subordinate body, in exercise of the power of delegated legislation, cannot issue orders or notifications,. So as to take away and destroy rights already accrued under orders or notifications earlier issued in assertion of the same power. In Collector of Central Excise and Land Customs and others (PLD 1970 SC 439where right to exemption had been vested under the terms of a statutory notification, it was held that an executive authority cannot in exercise of 1 the rule-making power or power to amend, vary or rescind an earlier order] take away the vested rights of the citizen. The above case was followed and the principle laid down therein was applied in a recent case by this Court reported as Al-Samrez Enterprise v. The Federation of Pakistan (1986 SCMR 1917). In this case also in exercise of statutory power under the Customs Act, 1969, exemption was granted from payment of customs duty, which was subsequently withdrawn and as the aggrieved party had acquired vested right to the exemption from payment of duty by virtue of certain overt acts, it was held that such vested right could not be taken away and destroyed by modification of earlier notification by virture of section 21 of the Generally Clauses Act.
11. The principles postulated in these decisions are fully attracted in the present case, inasmuch as the benefits extended by the notification, dated 26th February, 1973, were invoked by the deceased and were granted to him under the order of the Land Commissioner, dated loth May, 1973, much before the subsequent notification whereby the previous notification was cancelled on 2nd October, 1973. The respondents have not challenged the vires of the earlier notification. The only contention of the respondents was that the proceedings for determining the holding of the deceased had yet not been finalised under paragraph 8 of the Regulation, when the lasts order passed by the Chief Land Commissioner, Sind, dated 2nd October; 1974, was passed whereby the deceased was deprived of the benefits granted to him under the earlier notification. The mere fact that proceedings were still pending before the authorities for determining the holding of the deceased is no valid ground for depriving such a person of the benefit of any notification issued under para. 8(4) if the right has acquired as vested right, before such notification is cancelled. It may further be pointed out that the subsequent notification was applied to the case of the deceased by the Chief Land Commissioner by invoking his suo molu revisional jurisdiction and consequently it cannot be said that the matter with regard to the application of the notification was still pending adjudication before the Chief Land Commissioner. For all these reasons it is to be held that the order of the Chief Land Commissioner directing that the holding of the, deceased should be determined in accordance with the clarification contained' in notification, dated 2nd October, 1973, and the entire area held by him to be treated as self-acquired property, was passed without lawful authority and accordingly is of no legal effect. In this view of the matter it is not necessary to consider the contention that the aforesaid notification of Sind Land Commission, dated 2nd October, 1973, was ultra vires its power.
12. For the foregoing reasons this appeal succeeds and is allowed partially, with the result that the impugned judgment of the High Court of Sind, dated 5th July, 1980, is set aside and the constitutional petition filed by the appellants is accepted to the extent mentioned above. The parties, however, are left to bear their own costs.