The petition, is addressed against the order of Sub-Judge, Kotli, passed on May 31, 1982, whereby the award of land made by Revenue Assistant in his capacity as Collector Land Acquisition on October 16, 1977, was set aside for want of jurisdiction.
2. Muharnmad Khan was allotteo of evacuee land measuring 9 kanals 7 marlas under survey number 324 situate in Mohallah Baliah Kotli. At the instance of Pakistan Army, Revenue Assistant Kotli in exercise of his power as Collector Land Acquisition, acquired the land through an award on October 16, 1977. Muhammad Klan feeling aggrieved of the acquisition proceedings, brought a suit for declaration and perpetuaal injunction. It was averred that the Revenue Assistant was not competent to acquire the land, as such the whole proceedings were a nullity in the eye of law. He also prayed for perpetual injunction for restraining the defendants from dispossessing his from the suit land. The suit was decreed on May 31, 1983. The learned Sub-Judge declared that the award was made without lawful authority, as such it had no legal effect on the title of the plaintiff. He also directed the defendants to refrain from interfering in the possession of the plaintiff. Instead of appeal before the District Judge, revision petition was preferred before this Court on March 31, 1984.
The petition was contested by respondent No.1. My learned predecessor overruled the objection regarding competency of revision petition, but ultimately dismissed the petition by agreeing with the finding of Sub-Judge on the pint that the award was made without jurisdiction. In his judgment, the learned Judge, however, referred to a Notification No.Rs/624-25/64 of August 17, 1964 instead of Government Order No. Rs/93-102/78 of February 4, 1978, by which powers of Collector were conferred on Revenue Assistant to enable him to undertake acquisition proceedings. On appeal before the Supreme Court, an objection was raised by the petitioner to the aforsesaid misapplication of mind to the Government order in question. The objection prevailed and the order of this Court was set aside with the following observations:- "We have heard the arguments and gone through the record. When we confronted Mr. Abudul Rashid Abbasi, Advocate appearing on behalf of the respondent, as to whether there is any finding by the High Court with regard to the validity of the Notification dated 4th February, 1978, the learned Counsel has replied that there was no finding on the point. He has also conceded that the Notification which made the basis for the judgment of the High Court was the Notification dated 17th August, 1964, and not the Notification dated 4th February, 1978. However, the learned Counsel for the respondent has argued that this Court can itself go into the question of legality of the Notification dated 4th February, 1978.
We are of the view that it is proper to have the wisdom of the High Court with regard to the validity of the relevant Notification. It may be observed that where, on a pint which goes to the roots of the case, there is no finding of the High Court especially in exercise of the revisional jurisdiction, it is not fair to deal with such a point in this Court while sitting as a final Court of appeal. It is desirable that the findings of the High Court on a controversial pint are before this Court so as to enable it to look into the legality of such findings.
It is evident from the above observation that the learned Judges of the Supreme Court were keen to have the wisdom of this Court in respect of the legal status of the Government order of February 4, 1978.
3.The learned Sub-Judge was of the view that the Government order was not duly proved under the rules of evidence at it was not a certified copy of the original. This objection was reinforced by Mr. Abdur Rashid Abbasi who argued that unless the original order or its certified true copy was produced in evidence, it cannot be inferred that the Revenue Assistant who admittedly was not Collector Land Acquisition in the eye of law, was competent to acquire the land of plaintiff- respondent. Mr. Muhammad Hanif Khan, the learned Counsel for the petitioner was unable to meet this objection. I have perused the record. A photostat of the Government order was tendered in evidence as Ex.DA. It bears attestation of Superintendent Commissioner's office. The attestation by itself carries no weight unless it is certified as true copy of the original. In support of A the proposition, reference was made to Muhammad Abdullah's case, 1982 PCr.1.1 658. In that case, photostat of a document was tendered in evidence. The learned Judge of the Supreme Court who acted as Special Court, refused to accept photographic copy in evidence as in his view, it was violative of the provisions of Section 63 of the Evidence Act. Section 63, illustration (a) of the Evidence Act postulates that a 'photograph of the original can be accepted as secondary evidence provided the said photograph was that of the original. The proof of correctness of the photostat can obviously be ascertained either by its comparison B with the original by the Court or by a certificate to that effect, by competent authority. Be that as it may, the main proposition is desired to be resolved by determining the legal position of the Government order, described above.
4. It is accepted by Mr. Muhammad Hanif Khan that on the date of award, the Revenue Assistant was not conferred with the status and jurisdiction of Collector Land Acquisition as described in the Land Acquisition Act. However, the contention was that the order of the Government operated retrospectively, as such the award was made validly. Section 3 (c) of the Land Acquisition Act defines `Collector' as under:- "The expression "Collector" means the Collector of a district, and includes a Deputy Commissioner and any officer specially appointed by the Provincial Government to perform the functions of a Collector under this Act."
On adaptation of the Land Acquistition Act, the abvious inference is that referrence to Provincial Government shall be deemed reference to Azad Jammu and Kashmir Government. By virtue of this provision, no doubt, Government is competent to appoint any officer, including Revenue Assistant, to act as Collector of the district to undertake acquisition proceedings. There is, therefore, no dispute with the power of the Government to appoint any officer as Collector for the purpose.
Nevertheless, the concluding part of the Government order is subject of dispute. The order was admittedly made on February 4, 1978. However, it was given retroactive effect from March, 1969. The retroactive effect of the order is seriously assailed by the plaintiff-respondent.
5.Statutes operating retrospectively are not looked with favour as the same are considered oppressive and unjust; particularly, penal, fiscal and such statutes C which impair vested rights of citizens, are not given retroactive effect unless the statute is so designed.
6. The impugned order was passed by the Government in its delegated legislative authority. The consensus is that subordinate legislation by a delegated legislative authority cannot be given retrospective effect unless, of course, the statute under which delegation of legislative power was made, expresely provided as such. 1n present case, admittedly, the statute (Land Acquisition Act) does not delegate legislative power to the Government to legislate retrospectively. Therefore, one has to accept that the Government was conferred jurisdiction of prospective legislation. The order of the Government, therefore, shall take effect from the date of its notification.
7. The Revenue Assistant who admittedly was not competent to undertake acquisition proceedings, was conferred the authority of Collector Land Acquisition by virtue of the order of the Government.
This authority shall take effect from the date of notifying of the Government order and not prior to that. On this view of the proposition, all the proceedings undertaken by the Revenue Assistant, acting as Collector, were rightly declared without lawful authority. In Sh. Rehmatullah's case, PLD 1963 S.C. 633, the Government, in exercise of its powers, issued a notification whereby certain rights were conferred on occupants of evacuee property. The notification was issued under the provisions of Displaced Persons Act. By a subsequent notification, those rights were taken back. The matter was brought to the Supreme Court in appeal. Per majority, it was held that Government could not give retrospective effect to a notification so much so to take back the rights which were conferred earlier by a notification on occupants of evacuee property. The broad proposition laid down by the learned Judges was that a notification could operate prospectively particularly when it impaired the rights vested in citizens. In Sheikh Fazal Ahmad's case, P.L.D. 1964 S.C. 494, it was held that notification issued in exercise of subordinate legislative authority by executive does not include power to give the notification retrospective effect. It was a case under Registration of Claims Act.
The orders passed by Claims Commissioner were sought to be reviewed as by the time the limitation prescribed under Section 6 of the Act had expired. The Government, in exercise of its powers, amended the provisions to enable the Claims Commissioner to review his own order or the order of his predecessor-in-office after the period of 90 days prescribed under the previous law.
Mr. Justice B.Z. Kaikauds, the learned Judge who spoke for the Court, observed that legislature was competent to legislate with retrospective effect but the power of subordinate legislation was limited, and it was not within its power to give retrospective effect to its legislation. The observation is: "This amendment had come into force on 22-2-1963. An obvious objection to this amendment is that it is a notification by the Government in exercise of the power of subordinate legislation and such power does not include a power to give retrospective effect. The power of subordinate legislation which is exercised by the executive is a very limited power. Its exercise even to a limited extent had been objected to on the ground that the fact that a legislature had been empowered to legislate on a particular subject did not imply that it could delegate its power of legislation to any other person or body of persons. The power of delegation had, however, to be accepted to a limited extent because in many cases it is almost impossible for the Legislature to make provisions in detail and in some cases the time or the occasion for applying a statute has to be left to the executive Government. It was considered that it was not possible for the Legislature to exercise its functions properly unless the grant of subordinate legislative power to the executive was permitted to this extent. However, the subordinate legislative power is to be permitted only to the extent to which it is necessary for the proper exercise of its function by the Legislature and a power to legislate with retrospective effect has never been accepted as included in a power of subordinate legislation."
The principle of law laid down in Mst. Zewar Jan's case, P.L.D. 1967 Peshawar 92, is very close to the proposition under consideration. In that case, Assistant Custodian instituted execution proceedings. The proceedings were opposed, among others, on the ground of jurisdiction. It was alleged that the Assistant Custodian was not the competent authority in the eye of law to take execution proceedings. The objection pertained to the order of appointment of the Assistant Custodian. On realising defect in the appointment of Assistant Custodian, the Government made his appointment with retrospective effect including the period during which the execution proceedings were instituted. An objection was taken to the order of the Government in the like manner as in the present case, to the effect that the notification of appointment of Assistant Custodian was to operate prospectively and not retrospectively. The Government had appointed the Assistant Custodian in exercise of its delegated powers. The learned Judges of the Division Bench sustained the objection by holding that the notification of appointment of Assistant Custodian would operate prospectively and not retrospectively.
8. The principle laid down in the aforesaid authorities leads to the conclusion favourable to the respondents. It is, therefore, held that the Government order of February 4, 1978, even if accepted to have been proved in E evidence, shall have effect from the date of its notification and not prior to that.
On this premises, it -is held that on the date when the award was made, the Revenue Assistant was not vested with the powers of Collector as contemplated under the Land Acquisition Act. His whole action, therefore, was without lawful authority. The award is obviously a nullity in the eye of law.
There is no force in the petition. It is, therefore, dismissed with costs throughout.