' SHAFIUR RAHMAN, J.--Leave to appeal was granted to the Chairman, Federal L.And Commission Islamabad and another, to examine whether the Lahore High Court by its judgment, dated 22-11- 1980 had correctly interpreted the provisions of Paragraph 9 of the Land Reforms Regulation 1959 with a view to extend its benefit to the respondent who was not a declarant under that Regulation.
2. The land holding of Akhtar Abbas, the respondent, came up for scrutiny before the Land Commission authorities under the Land Reforms Regulation, 1972 (M.L.R.115). He was found to be possessed of 14013 P.I: Units. Allowing him the concession of 2,000 P.I. Units for tube-well, he was found to have an excess of 13 P.I. Units which he was called upon to surrender. He was satisfied with this order. The Inspection Team, Federal Land Commission submitted a report and disputed the legality and the validity of certain mutations namely of Mutation No,685 tamleek, No,640 and 741 of village Qaim Bharwana and held that the respondent was liable to surrender not 13 P.I. Units but 4762 P.I. Units equivalent to 138.906 acres, in addition to 13 P.I. Units. On 17-2-19T6, the Chairman, Federal Land Commission ,passed an order calling for the record "if not received so far". The matter was taken up by the Chairman Federal Land Commission who passed an order on 6-12-1976, the operative portion of which is as hereunder:- "2. The objection was that the possession had not been transferred to the donees; nor was their acceptance available on the record. Both these requirements are not essential in case the gift is made in favour of the minors. The donees are minor. The objection is, therefore, ill-conceived.
3. However, from the perusal of the record it came to my notice, that the area measuring 349.001 acres was acquired by the declarant under an oral Tamleek from his father, on 25-9-1968, through Mutation No,244. Adding this to his previous ownership, brings up the total area held by him, as 670.524 acres with the following classification:-
(a) Irrigated 480.037 acres
(b) Un-irr4gated 190.487 acres Total: 670.524 acres
5. When computing the unirrigated area of two acres equal to one acre of irrigated land, the total land held by the declarant comes to 575.280 acres. Under paragraph 8, MLR-64, the declarant was not entitled to retain land more than 500 acres of irrigated land. The correct procedure for the declarant was that he should have made the choice and surrendered the additional area over and above 500 acres. The declarant, however, did not care to do so. The surplus area as mentioned above stands automatically resumed by operation of law, as he was not entitled to retain this area.
Since he has not given the choice, the Deputy Land Commissioner, is directed to resume the area to the extent, preferably in one empact block.
6. The learned counsel for the declarant submitted that he had no knowledge of this objection, and, therefore, he was not in a position" to meet the same. This is a legal objection and time was given to him to study this problem. It is an established practice that if during the course of hearing such legal questions arise no adjournment is granted. Therefore, no adjournment is required for its disposal. I, therefore, order accordingly."
3. Aggrieved by this order of the Chairman, Federal Land Commission, the respondent filed a Constitution Petition in the High Court which was allowed. The operative part of the judgment of the High Court is as hereunder:- "It is intended by the learned counsel that the. Chairman, Federal Land Commission, kept in view only para. 8 of the Land Reforms Regulation 1959 and was oblivious of contents of para 9. He has referred to exemption 9-A which reads as under:- "Notwithstanding the provisions of para 8 an existing owner may retain out of his present holding such additional area, if any, which would bring his holding equivalent to 36000 P.I.U."
' It is contended by the learned counsel that the total land owned by the petitioner did not exceed 32000 P.I.U.
' Mr. A . H. Najfi, Advocate appears for the respondent but is not in a position to resist the position taken by the petitioner. As the case of the petitioner is fully covered by paras 8 and 9 of Land Reforms Regulations, 1959, we do not find any justification to maintain the order of the respondent.
The same is, therefore, declared to be without lawful authority and of no legal effect. The result is that the order of the Land Commissioner shall be maintained. There will be no order as to costs."
4. Mr. Muhammad Nawaz Abbasi, Assistant Advocate-General Punjab, on behalf of the appellants submitted that paragraph 9 of the Land Reforms Regulation 1959 was not attracted to the case of the respondent at all because neither he was a declarant under that Regulation nor did his holding exceed the ceiling prescribed under that Regulation when it was enforced. What happened in his case was that while his land holding conformed to the requirements of the Regulation of 1959 when it was enforced, it was hit by the prohibition contained in Paragraph 8 after the Land Reforms Regulation 1959 had been enforced. The learned counsel has also relied in para.4(5) of the Regulation 1959 and on the notifications, dated 4th of April, 1969 and 5th of September, 1959 issued by the Land Commission in exercise of powers possessed by it clarifying the position on the subject. According to the learned counsel/Assistant Advocate-General the provisions of clauses (b), (c) & (d) of Para. 32 sub-para (2) could be enforced by the Chairman, Federal Land Commission in exercise of the powers under Paragraph 29 of the Land Reforms Regulation 1972.
5. Ch. Khalilur Rehman, Advocate, the learned counsel for the respondent has taken up three grounds for protecting and defending the impugned order of the High Court. In the first place it is contended that the learned counsel representing the Federal Land Commission in the High Court did not contest that the benefit 'of clause (a) of Para. 9 of the Land Reforms Regulation, 1959 was available to the respondent for determining the ceiling of his land holding. The High Court has, according to the learned counsel, expressly recorded that the learned counsel had no answer against the contention that the benefit of that para. Was available to the respondent. Secondly, it has been contended by the learned counsel for the respondent that the respondent was in fact entitled to the benefit or concession of clause (a) of Paragraph 9 of Land Reforms Regulation 1959.
The definition of "existing owner", "the ceiling" and the "holding" could not on the strength of notification dated 4th of April, 1969 be given a retrospective operation. According to the learned counsel the benefit of clause (a) Paragrpah 9 was not limited to those owners who were hit by the Land Reforms Regulation of 1959 at its inception but was available also to all others who had exceeded the ceiling prescribed in Para 8 after coming into force of the Land Reforms Regulation, 1959. Thirdly, according to the learned counsel for the respondent Chairman Federal Land Commission was not authorsied under Para 29 to reopen this question for three good reasons. In the first place the record had not been called for examining the violation of Land Reforms Regulation, 1959 but had instead been called for examining violation of Land Reforms Regulation of 1972. Diversion of proceedings could not take place under Paragraph 29 from prbceedings under Land Reforms Regulation 1972 to Land Reforms Regulation 1959. Secondly the record was not called for as required by Paragraph 29 by the due date which was taken to be 30th of September, 1975 as required by Proviso to Paragraph 29. Thirdly, such a jurisdiction was not possessed by the Chairman in view ofthe decision given in the case of Muhammad Aslam Khan and 9 others v.
Federal Land Commission through its Chairman and 3 others (PLD 1976 Pesh. 66).
6. Paragraph, 8 and 9 of the Land Reforms Regulation 1959 which require interpretation in this case are as hereunder:- "8. Lir Its on individual holdings. --Save as otherwise provided in this Regulation, no person shall, at any time, own or in any capacity possess land in excess of five hundred acres of irrigated land or one thousand acres of unirrigated land, or irrigated and unirrigated land the aggregate area of which exceeds five hundred acres of irrigated land one acre of irrigated land, being reckoned as equivalent to two acres of unirrigated land, and any reference in this Regulation to an acre of irrigated land shall be construed accordingly.
9. Exemptions.--Nothwithstanding the provisions of paragraph 8.--
(a) an existing owner may retain, out of his present holding such additional area, if an.y, which would bring the total area retained by him to the equivalent of thirty-six thousand produce index units;
(b) a recognized educational institution or a university may own or possess such additional area as it may need for the purposes of research or demonstration;
(c) except in cases provided for in paragraph 10, Government may allow charitable or religious institution approved by it to own or possess any additional area;
(d) Government may, in public interest, allow owners or operators of recognized existing stud and livestock farms to retain such additional areas under such farms as it considers necessary for the purpose, for so long as such areas are maintained as stud and livestock farms: ' Provided that in the case of stud farms owned or controlled by Government, it shall be presumed that such farms are being maintained in public interest and the areas under them are necessary for the purpose;
(e) an existing owner may retain, out of his present holding such additional areas not exceeding hundred and fifty acres, as may be under orchard, for so long as it is maintained as such: ' Provided that--
(i) the area under orchard is in compact blocks of not less than ten acres each, and
(ii) it has been shown as area under orchard in the Revenue records at least since Rabi 1956-57;
(f) an existing owner whose holding is greater than the area of five hundred acres of irrigated Ian' or the equivalent of thirty-six thousand produce index units may transfer to any or all of his heirs such additional area, if any, as taken together with any area gifted by him to all or any of his heirs on or after the fourteenth day of August 1947, and any area retained by him under clause (e) above, would bring the aggregate area so transferred to the equivalent of eighteen thousand produce index units: ' Provided that the maximum area permissible to be retained under clause (e) shall, in no case, be treated as more than the equivalent of six thousand produce index units.
' Explanation.--A person who came into ownership or possession by virtue of a gift made on or after the fourteenth day of August, 1947, shall not, where the denor is alive, be entitled to claim as existing owner the benefit of the exemption under clause (e) or clause (f)."
7. The crucial expressions used in Paragraph 9 of the Land Reforms Regulation 1959 reproduced above, are the "existing owner" and the "present holding". "Owner" has been defined in clause (7) of Para 2 of the Land Reforms Regulation 1959 to include "an occupant as defined in clause (16) of section 3 of the Bombay Land Revenue Code, 1879 (Bombay Act V of 1879)". "Existing" has the popular dictionary meaning of "that exists or has existence; that exists at any implied or specified time". (Oxford English Dictionary Volume 3). Reading the word "existing" with the word "owner", the expression "existing owner" would mean any person who at the time of the enforcement of the Regulation was an owner of the land and this would be irrespective of the entries or the extent of the holding. The first notification that was issued by the Commission on 5th of September, 1959 was in the following words:- "No, ASR-2933-59/4030-LC.--In exercise of the powers conferred on the West Pakistan Land Commission under paragraph 4(5) of the M.L. Regulation No,64, the Commission is pleased to direct that the term "existing owner" used in the M.L. Regulation No,64 shall be deemed to mean a person entered as an owner in the Revenue records on or before the 7th February, 1959 and the person who had become entitled to any land on account of inheritance before the said date although not entered as such in the Revenue records."
' It is a restricted definition because it limits the ownership of a person "entered as an owner in the Revenue records on or before the 7th February, 1959 and the person who had become entitled to any land on account of inheritance before the said date although not entered as such In the Revenue records". This definition makes the respondent as "existing owner".
8. - The other expression which is of equal importance if not more is "present holding". "Present" has the following meaning according to the Chambers Twentieth Century Dictionary:- "...Now existing: not past or future: denoting time just now, or making a general statement (gram.): in or of the present tense: immediate. - n. That which is present: the present time- ' In Black's Law Dictionary 'Present' has been defined as hereunder:- "Now existing; at hand; relating to the present time; considered with reference to the present time."
9. The present holding in the context of Paragrpah 9 of the Regulation would, therefore, mean the land holding as existing on the date the Land Reforms Regulation 1959 was enforced and not on a future date when a declaration becomes necessary on account of the ceiling having been exceeded. It is in this context that the definition of "existing owner" came to be revised by the Land Commission as hereunder by notification, dated 4th April 1969:- "No,ASR-II-696/69/1967-LC.- In exercise of powers conferred on the West Pakistan Land Commission under paragraph 4(5) of the West Pakistan Land Reforms Regulation of 1959, the Commission is pleased to direct that the term "existing owner" used in the said Regulation shall be deemed to mean such person as is entered as owner of more than 500 acres of irrigated or 1000 acres of unirrigated land in the Revenue records on or before the 7th February, 1959 and such other person/owner whose holding exceeded the above limit as a result of inheritance before the said date, although not entered as such, in the Revenue records. A person/owner whose holding exceeds the ceiling limit as a result of inheritance or otherwise on or after 7th February, 1959, shall not be deemed to be an "existing owner" for purposes of grant of concessions under paragraphs 9 and 11 of the Regulation. Such a person/owner shall only be entitled to retain land of his choice equivalent to 500 acres of irrigated land or 1,000 acres of unirrigated land and the excess land, if any, shall stand resumed to Government.
2. This notification shall be deemed to have taken effect on and from the 7th February, 1959.
3. The Commission's notification No,ASR-2933/59/4030-LC, dated the 5th September, 1959 shall be cancelled."
10. It is true, as contended by the learned counsel, that if this notification exceeded and enlarged the scope of Paragraph 9 of the Regulation then its retrospectivity could be questioned. If, however, it is taken to be a mere clarification or expositioh of the law and not an enlargement or extension of it, the rights of those affected by it remain unaffected for what is being achieved by the notification dated 4-4-1969 also follows from the plain reading of two expressions "existing owner" and "present holding" used in that paragraph. The concession of Paragraph 9 of the Regulation could in terms be available only to an "owner" who was hit by the Land Reforms Regulation 1959 at its inception and not to those who violated the prohibition contained in Paragraph 8 in future. This aspect becomes clearer from Paragraphs 29 and 30 of the Introduction to the 'Land Reforms in West Pakistan, Volume I, dated October 27, 1960. These paragraphs are reproduced as hereunder:- "29. Decisions of President's Cabinet.--The President's Cabinet accepted this proposal in consequence of which paragrpahs 8 and 9 were incorporated in the Regulation. It has been provided that no person can at any time own or in any capacity possess land in excess of 500 acres of irrigated land or 1,000 acres of unirrigated land or irrigated and unirrigated land, the aggregate area of which exceeds 500 acres of irrigated land, one acre of irrigated land being reckoned to as equivalent to two acres of unirrigated land. Certain exemptions, which are detailed in paragraph 9 of the aforesaid Regulation were however, allowed to existing owners in order to make the transitional stage less hard for them.
30. Limits on individual holdings.--Although the existing owners have been allowed to retain more than the area prescribed by paragraph 8 of the Regulation, neither the successor of the existing owner can retain more than the area prescribed under paragrpah 8 nor anyone can acquire any area which may increase the area of his holding beyond the area prescribed under the aforesaid paragraph.
' (the underlining having been done only to emphasise the portions relevant to the case).
11. It, therefore, follows that the two notifications issued by the Land Commission accomplish nothing more than clarification of what was already contained in paragraph 9 of the Land Reforms Regulation of 1959. Consequently, there is no question of any vested right of the appellant having been affected adversely by these notifications.
12. As regards'the jurisdiction of the authorities under paragraph 29 of Land Reforms Regulation 1972, one of the objections of the learned counsel for the respondent was that the record of the case was not called before the date prescribed in law namely, the 30th September, 1957 as provided in one of the provisos to paragraph 29 of the Land Reforms Regulation, 1972. This objection is based on a misconception. The limiting date prescribed in the Regulation was extended from time to time. Act No,XXX of 1974 extended the date from 14-8-1974 to 31-3-1975. Act No,XXXIX of 1975 extended the date upto 30th September, 1975. Ordinance No,XXI of 1975 further extended the date upto 31st of March, 1976 and finally/ Ordinance No,XXXV of 1976 extended the date upto 30th November, 1976. As it was a case of suo motu revision initiated on the report of the functionaries of Inspection Team of the Federal. Land Commission, the order of the Chairman calling for the record passed on 17-2-1976 was well within the prescribed date.
13. The second objection of the learned counsel for the respondent to the jurisdiction is that the orders passed by the functionaries of the Land Commission were under Land Reforms Regulation of 1972 and none under the Land Reforms Regulation of 1959 and for that reason Land Reforms Regulation of 1959 could not be invoked for direting resumption of the holding of the respondent.
Orders could be passed only under Land Reforms Regulation 1972. As the orders which had been questioned were passed under that Regulation and not the earlier one Para.29, could not be invoked for giving effect to 1959 Regulation. This objection omits to take note of and give full effect to paragraph 32 of the Land Reforms Regulation 1972. ' it reads as hereunder:- "32. Repeal and saving.--(1) The West Pakistan Land Reforms Regulation (Regulation 64 of 1959), hereinafter referred to as the said Regulation, is hereby repealed.
(2) Subject to the other provisions of this Regulation, the repeal of the said Regulation shall not affect--
(a) the previous operation of the said Regulation or the validity, invalidity, effect or consequences of anything already done or suffered- thereunder; or
(b) any right, title, privilege, obligation or liability acquired, accrued or incurred thereunder; or
(c) any penalty, forfeiture or punishment incurred in respect of any offence under the said Regulation; or
(d) any investigation, legal proceedings or remedy in respect of any such right, title, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid; and ' any such investigation, legal proceedings, or remedy may be instituted, continued or enforced and any such penalty, forfeiture or punishment, may be imposed as if this Regulation had not been made.
(3) Any proceedings pending before an authority constituted or appointed under the said Regulation, immediately before the coming into force of this Regulation, shall stand transferred to such authority constitued or appointed under this Regulation as the Commission may, by, order published in the official Gazette, specify in this behalf, and the authority to which such proceedings are transferred shall, in such proceedings; act in accordance with the provisions of the said Regulation, as if it had been appointed under the said Regulation.
(4) Land vesting in Government under the repealed Regulation and not granted to any person before the repeal thereof shall be disposed of or utilized by Government as far as may be in accordance with the provisions of Part V."
14. In the first place, clause (b) of sub-paragraph (2) of Paragraph 32 preserves the obligation or liability accrued or incurred under Land Reforms Regulation of 1959 and the operative portion enjoins that any remedy may be instituted or enforced as if the Land Reforms Regulation of 1972 had not been made. This Paragraph 32 has the effect of incorporating with certain modifications the provisions of the Land Reforms Regulation of 1959 in Land Reforms Regulation 1972 and making the authorities under the latter Regulation competent to deal with the matter uncontrolled by it as if the liabilities etc. Had been incurred under the Regulation of 1959.
15. Paragraph 32 of the 'Land Reforms Regulation, 1972 is actually a reproduction or incorporation of section 6 of the General Clauses Act and this had become necessary because the provisions of General Clauses Act do not of their own force, apply to the Martial Law Regulations which was the subject-matter of these two Regulations. In the case of Saeed Ahmad v. The State P L .D 1964 SC 266, section 6 of the General Clauses Act came up for consideration before this Court and the following observations were made:- "It will be observed that in accordance with this section all rights, liabilities, etc. Continue in spite of repeal and all proceedings can be taken and continued which could have been taken or continued if the repealing Act did not come into force a person who commits an offence incurs a liability at the time when he commits it. That liability sticks to him and does not disappear by any subsequent amendment or repeal unless to the amendment or repeal be added something that expressly takes away the liability."
16. Paragraph 8 of the Land Reforms Regulation of 1959 prohibits the ownership, at any time or in any capacity, of land in excess of five hundred acres of irrigated land or one thousand acres of unirrigated land. Paragraph 16 of the Regulation of 1959 provides as hereunder:- "16. Resumption and vesting in Government of excess land. --(I) Land in excess of the area permissible for retention under Part III shall vest in and be resumed by Government free from any encumbrance or charge.
(2) An encumbrance or charge which existed on any land resumed under sub-paragraph (1) shall be deemed to have been transferred to the land retained under Part III, and also to the compensation payable under paragrpahs 17 and 18 to the extent necessary."
17. Paragraph 29 of the Land Reforms Regulation, 1959 provides the punishment in the following words:- "29. Offences and ,Penalty.--Whoever contravenes or fails to comply with any of provisions of this Regulation or the rules or orders made thereunder, or fails to make any declaration or furnish any information required by such provisions, or wilfully furnishes incomplete or false information, or tampers with any records relevant to the purposes of such provisions, or obstructs any person in the discharge of his duties or functions under such provisions shall be punished.
' Maximum punishment: 7 years' R.I."
18. It is not disputed by the learned counsel for the respondent that vesting of the excess land under Paragraph 16 follows immediately on excess taking place in Contravention of Paragraph 8. It is not dependent on an adjudicatory order or an order identifying the land which is to be resumed.
This concession is in fact what is implied by Paragraph 16 and with regard to the choice and surrender all that can be said is that they are the machinery provisions for giving effect to the prohibitions and the mandate of the law.
19. The learned counsel for the respondent has heavily relied on the decision of the Peshawar High Court in the case of Muhammad Aslam Khan and 9 others v. Federal Land Commission through its Chairman and 3 others (PLD 1976 Pesh. 66). The facts of that case are distinguishable from the one before us and make it of no direct relevance. For example, in that case final determinative orders had been passed under the Land Reforms Regulation of 1959 and they had attained finality.
In the case before us no order under the Land Reforms Regulation, 1959 had ever been passed.
Secondly, the Federal Land Commission had called for the record at a stage when the power was not conferred on it to call for the record of those cases which had been disposed of under the Land Reforms Regulation,, 1959. A jurisdictional defect at its inception was, therefore, found in dealing with that case. In the present case no order having been passed under the Land 'Reforms Regulation, 1959 at any earlier stage before the calling of the record, it cannot be said that any such jurisdictional defect existed. Finally, the proceedings taken in this case are under Paragraph 32 of the. Land Reforms Regulation, 1972 (M.L.R.115) and it is only on the strength of Paragraph 32 of the Regulation of 1972 that the Land Reforms Regulation, 1959 stands incorporated by it and that the matter was dealt with by the Federal Land Commission. It was action taken under Land Reforms Regulation, 1972 (M.L.R.115) and through it under Land Reforms Regulation, 1959 (M.L.R.64) and not independently of it.
20. We find that the High 'Court has not attended to certain legal aspects of the case. The order impugned before the High Court was well within the jurisdiction and competently passed. This appeal is, therefore, allowed, the judgment of the High Court is set aside and that of the Federal Land Commission restored.