1. ABDUL KADIR SHAIKH, J.-----The five petitioners in the three petitions have challenged the order passed by the Land Commissioner, Sind dated 23rd September 1972, in review proceedings, and the subsequent appellate order of the Chief Land Commissioner, Sind dated 26th January 1973, by which the original order passed by the Land Commissioner, Sind dated 23rd August 1972, was modified. The main petitioner in these cases is Pir Shah Mardan Shah-II (hereinafter mentioned as petitioner No. 1), who is popularly known as Pir Pagaro of Sind, the Head of religious institution, `Dargah of Pir Pagaro'. The relevant facts leading to these petitions may be stated as under On the promulgation of Martial Law Regulation 115, now known as Land Reforms Regulation, 1972, petitioner No. 1 filed declaration under the requisite Land Reforms Form showing various alienations of his holdings during the period from 1-3-67 to 20-12-1971. After scrutiny of the records, the Land Commissioner, Sind at Hyderabad, by the order dated 23rd August 1972, declared all the alienations from Serial Nos. 1 to 24, except the alienation at Serial No. 4, to be valid under paragraph 7 of the Regulation. The relevant portion of the order reads as follows: --- "The alienations mentioned above at Serial Nos. 2, 3, 5 to 7, 11 to 13 are by way of partition through statement on different dates. The alienees are reported to be in effective possession of th9- land.
2. They are managing it, appropriating produce and paying the land revenue. I hold these alienations are bona fide and therefore declare them to be not void under para. 7 of the Regulation.
3. The alienations mentioned above at Serial Nos. 8 to 10, 14 to 24, are by way of sale through registered deed on different dates. The Revenue Record has been mutated according to consideration passed and reported to be adequate. The alienees are reported to be in effective possession of the land. They are managing it, appropriating the produce and paying the land revenue. I hold these alienations are bona fide. I therefore declare to be not void under para. 7 of the Regulation.
4. The alienations mentioned above at Serial No. 4 are by way of gift on 19-2-70. The alienee is non- heir of the declarant. The alienation is hit by Explanation-1I to para. 7(1)(b) of the Regulation. I therefore declare them to be void ab initio."
5. On 19-9-1972 the counsel for petitioner No. 1, Syed Ghous A.I Shah and Abdul Latif Memon Advocates, received intimation under letter issued by the Deputy Land Commissioner, Khairpur that they were required to appear before the Land Commissioner, Sind at Hyderabad, on 29-2-1972, in connection with the review proceedings regarding "Alienation involving Paragraph 7 of M. L. R. 115- Declaration Form filed by Pir Syed Mardan Shah-II." After hearing the learned counsel and Dhani Bux Nizamani, General Attorney of petitioner No. 1, the Land Commissioner, Sind passed the order dated 23rd September 1973, reviewing his previous order to the extent that he held the alienations at Serial Nos. 8, 9, 10, 14, 15, 16, 17, 18, 21, 22, 23 and 24 to be genuine and the remaining alienations as void.
6. Petitioner No. 1 filed an appeal against this order to the Chief Land Commissioner, Sind, but it was dismissed on 26th January 1973. It was in these circumstances that the petitioner No. 1 alongwith other petitioners approached this Court through these Petitions under Article 201 of the Interim Constitution.
(i) That the petitioner No. 1 being the religious Head and spiritual Leader of the religious institution known as Dargah of Pir Pagaro in Sind has always stood for Islamic ideology, democratic values and social justice and he was opposed to the so-called Islamic Socialism of the Pakistan People's Party of which the present President of Pakistan is the Chairman.
(ii) That the petitioner No. 1 opposed him in the last general elections of 1970 and his relations with the President of Pakistan are in the worst shape ever since then-
(1) That the petitioner No. 1 was contacted by Mr. Z. A. Bhutto, the President of Pakistan, on telephone after about one and half months of his taking over as the President and Chief Martial Law Administrator and during the conversation over the telephone the petitioner was threatened "I am not Ayub, I am not Yahya but I am Z. A. Bhutto and I know how to use Martial Law and Martial Law with full force will be used against you." ` This was followed by an order by Deputy Commissioner, Khairpur, purporting to be under rule 32(c) of the Defence of Pakistan Rules, 1971, requiring the petitioner No. 1 that whenever he were to leave Khairpur District he should report the fact to the Deputy Commissioner.
(2) That the petitioner No. 1's case of Income-tax was re-opened and several notices were given and adverse orders were passed on 6-4-1972.
(3) That the petitioner No. 1 on 14-9-1972 received the letter No. PA/474/72, dated 12-9-72 from the District Magistrate, Khairpur, alleging his participation in the so-called London Plan by a sort of remote control to over-awe, lawful and democratic Government and to show cause as to why action under Rule 32 of Defence of Pakistan Rules, 1971 and section 124-A, Pakistan Penal Code be not taken against him.
(4) The petitioner No. 1 replied to the aforesaid letter requiring him to show cause and his reply was published in almost all the daily newspapers of the country on 21-9-1972. In this reply the petitioner No. 1 had also disclosed the telephonic conversation of the President of Pakistan referred above . . . .
7. It is significant that the petitioner No. 1's contentions in this reply have not been refuted by the President uptill now."
8. Apart from this, Mr. A. K. Brohi, the learned counsel for the petitioners raised several questions of law in support of the contention that the impugned orders are without lawful authority. He firstly contended that Rule 10 in so far as it provides for suo motu power of review is beyond the scope of the Regulation and is ultra vires on that account. In this behalf he referred to the provisions of paragraph 6 of the Regulation which authorise a Commission to "make rules for carrying out the purposes of this Regulation." The contention was that the grant of review of the orders can by no means be considered as one of the "purposes of the Regulation", and therefore there is no power which enables the Rule-maker to provide for review, much less suo motu review.
9. Mr. A. K. Brohi next contended that the review proceedings were conducted in violation of the mandate contained in the Rules and the impugned orders are void even on that ground. In this behalf he urged as follows:
(i) That under Rule 10(1) of Sind Land Reforms Rules, 1972 it is mandatory that the Chief Land Commissioner, a Land Commissioner, a Deputy Land Commissioner, or an Assistant Land Commissioner may of his own motion or on an application of any party interested made to him in that behalf, within 20 days from the date of the order, or if the order is appeal-able within 20 days of the expiry of the date of appeal review, and on so reviewing modify, reverse or confirm any order passed by himself or by any of his predecessors-in-office ; but the order dated 23-8-1972 has been reviewed after more than 20 days of the date of previous order in spite of the fact that the Land Commis--sioner in his order dated 23-9-1972 has clearly admitted that he has been moved by the Deputy Land Commissioner, Khairpur to review his orders.
(ii) That the Rule 10 in so far as it provides for suo motu review is beyond the scope of Paragraph 6 of the Main Regulation (M. L. R. 115), and is ultra vires on that account.
(iii) That according to Rule 10 (i)(b) of the said Rules "an order shall not be modified or reversed unless reasonable notice has been given to the parties affected thereby to appear and be heard".
10. Under no circumstances could such a notice as was given in this case be regarded as a reasonable notice.
(iv) that the impugned orders are also vitiated as being in violation of the principles of natural justice in that no notice of review proceedings was at all given to the donees under the gifts (petitioners 2 to 4 herein) who were also entitled to such notice under the law.
(v) That bare perusal of the impugned orders would disclose a biased mind was in action against the petitioner No. 1, and the orders are therefore mala fide in law.
11. So far as the challenge to the impugned orders on the ground of mala fide is concerned, serious exception was taken on behalf of the respondents that the allegations made against the President of Pakistan are preposterous, frivolous, malicious and scandalous, and the maker thereof is liable to action under law. It will be only appropriate to reproduce the following paragraphs of the counter-affidavit filed by Chaneser Khan, Deputy Secretary, Sind Land Commission, Hyderabad "11. That the contents of para. 11 of the petition are vehemently denied. It is specifically denied that the impugned orders are mala fide or ultra wires or that they were passed on the personal grudge of the President of Pakistan or that they were initiated or commenced at the instance of the President of Pakistan. The allegations are preposterous, frivolous, malicious and scandalous and the maker thereof is liable to action under the law. It is submitted that the impugned orders were passed in bona fide exercise of lawful powers duly vested in the authorities passing the orders, and, as shown by the contents thereof, the orders were passed purely on the merits of the case after careful consideration of all the facts and circumstances and the provisions of law applicable to the case and not due to any extraneous consideration. The circumstances recited in sub-paras. A.I) to
(iv) showing alleged political and personal differences of the petitioner with the President of Pakistan have been made only to confuse the real issue and the same have no relation whatsoever with the merits of the case which was decided purely on its own merits by the respondents.
12. A (i) That the contents of sub-para. A.I) set out the political and religious virtues professed by petitioner No. 1 and his opposition to the programme of a particular political party which have nothing to do with the merits of this case and are, therefore, irrelevant and calculated to side-track the issue.
13. A(ii) With regard to sub-para A (ii), it is submitted that the alleged political rivalry between the petitioner No. 1 and then President of Pakistan has nothing to do with the decision of this case which was decided purely on legal considerations and on its own merits.
14. A (iii) That the contents of sub-para. A (iii) regarding the alleged telephonic conversation between the then President of Pakistan and the petitioner are not admitted for want of knowledge. The petitioner has made this malicious allegation in order to show mala fide on the part of the authorities who passed the respective orders, but it is significant that according to petitioner's own claim the said con--versation with the President had taken place after one and half month of his taking over on 20th December 1971, whereas, the first order in this case was passed by the Land Commissioner on 23rd August 1972, which was in favour of the petitioner No.1. This by itself, shows that, had there been a grain of truth in the allegations of the petitioner the very first order would have been passed against him, and not in his favour. This circumstance by itself further exposes the myth of defence maliciously set up by the petitioner. The rest of the contents in this sub-para. Are also denied for want of knowledge. Besides, the same have nothing to do with the merits of the case in any manner whatsoever.
15. A(iv) That the contents of sub-para. A (fv) relate to a matter with which the Land Commission authorities could not possibly have any concern and are highly irrelevant to the merits and decision in this case. The insinuations made are false and malicious and are denied.
16. A(v) That the contents of sub-para. A (v) have no relevance whatsoever with the merits of the case and have been made only to confuse the issue. The respondents are in no way concerned with any action taken by any authority in Pakistan in respect of any alleged activities of the petitioner.
17. A (vi) That the contents of sub-para. A(vi) which are in con--tinuation of sub-paragraph A(v) have no relevancy whatsoever to the merits of the case and the insinuations made by the petitioner are accordingly denied."
18. Now, in order to appreciate the other contentions raised by Mr. A. K. Brobi, we may firstly reproduce Paragraphs 6, 7 and 8 of the Land Reforms Regulations, 1972, as originally enacted. These read: "6. Power to make Rules.-A Commission may make rules for carrying out the purposes of this Regulation, including rules on matters relating to or connected with the presentation, hearing and determination of appeals from, and applications for the revision and review of, orders made under this Regulation.
PART III-RESTRICTIONS ON OWNERSHIP AND POSSESSION OF LAND
7. Certain transfers void.-(1) Save as otherwise provided in this Regulation: ---
(a) The transfer of any land, and the creation of any right or interest in or encumbrance on any land, made in any manner whatsoever in respect of any area, on or after the twentieth day of December 1971, by any person holding immediately before that date an area of more than one hundred and fifty acres of irrigated land or three hundred acres of un-irrigated land or an area equivalent to fifteen thousand units (calculated on the basis of classification of soil as entered in the revenue records for Kharif 1969 and Rabi 1969-70), whichever shall be greater, shall be void, and the land so transferred or incumbered shall be deemed to have been owned or possessed, as the case may be, by the person by whom it was owned or possessed immediately before that date Provided that in the case of a person to whom the provisions of sub-paragraph (2) of paragraph 8 apply, no such transfer or creation of as any right or interest or encumbrance shall be void unless he was holding on the said date an area more than eighteen thousand produce index units.
(b) Save in cases where the Commission is satisfied that it was a bona fide transaction, the transfer of any land and the creation of any right or interest in or encumbrance on any land, made in any manner whatso--ever, by any person holding on f first March 1967, an area equivalent to more than three thousand produce index units calculated on the basis of classification of soil as entered in the revenue records for Kharif 1966 and Rabi 1966-67), shall be deemed always to have been void, and the land so transferred or the land on which the right, interest or encumbrance was so created shall be, and shall be deemed always to have been owned, or possessed, as the case may be, by the person by whom it was owned or possessed immediately before that date: Provided that nothing in this clause shall apply to alienation made by a person in favour of his heir.
19. Explanation l.-For the purposes of this sub-paragraph and para--graph 10, an heir shall mean the owner's wife or wives, sons, daughters, father, mother and sons and daughters of a deceased son or daughter.
20. Explanation II.-Where any such transaction as is referred to in clause (b) of this sub-paragraph has resulted in the transfer of any land to the creation of any right or interest in or encumbrance on any land in favour of a member of the owner's family or the reversion of such land to such owner or member, whether through the intermediation of a third person or otherwise, such transaction shall be deemed to have been owned or possessed as the case may be, by the person by whom it was owned or possessed immediately before such transfer or encumbrance.
21. Explanation III.-In determining whether a transaction referred to in clause (b) of paragraph (1) was bona fide or otherwise the Commission shall, among other matters, take into consideration the following factors :-
(i) Whether adequate consideration has been paid by or on behalf of the person in whose favour the transfer has been made or any right, interest or encumbrance has been created;
(ii) under whose management the land has remained which is claimed to have been transferred or in respect ofwhich any right, interest or encumbrance has been created;
(iii) who has been paying the land revenue and other charges in respect of such land ;
(iv) who has been receiving the rent for or Batai share from such land.
(2) If any question arises whether any transfer or other transaction is or is not valid under sub- paragraph (1), the decision of the Commission thereon shall, subject to the provisions of paragraph 29, be final.
(3) Nothing in sub-paragraph (1) shall apply to any transfer of land or the creation of any interest or right or encumbrance on any land made by a person who held on twentieth December 1971, land in excess of the permissible limits under paragraph 8, after he has surrendered to Government, in accordance with the provisions of this Regulation, the land in excess of such limits.
8. Limits on individual holdings.-(1) Save as otherwise provided in this Regulation, no person shall, at any time, own or in any capacity possess land in excess of one hundred and fifty acres of irrigated land or three hundred acres of unirrigated land, or irrigated and unirri--gated land the aggregate area of which exceeds one hundred and fifty acres of irrigated land (one acre of irrigated land being reckoned as equivalent to two acres of unirrigated land), or an area equivalent to fifteen thousand produce index units of Land whichever shall be greater.
(2) Notwithstanding the provisions of sub-paragraph (1), an owner may retain, out of the area of land he was holding immediately before the commencement of this Regulation, such additional area, if any, which would bring the total area retained by him to the equivalent of eighteen thousand produce index units, if on the twentieth of December 1971-
(i) he owned an agricultural tractor, certified to be in good working order by an officer authorized by the Commissioner in this behalf ; or
(ii) there was installed on his land a tube-well, of not less than ten horse-power."
22. The relevant Rule under consideration is Rule 10 of the Sind Land Reforms Rules, 1972 published in the Gazette of Sind, Extraordinary of 22nd July 1972, which reads as follows: "10. Review.-(I) The Chief Land Commissioner, a Land Commissioner, a Deputy Laud Commissioner, or an Assistant Land Commissioner may of his own motion or on an application of any party interested made to him in this behalf, within 20 days from the date of the order or if the order is appeal-able within 20 days of the expiry of the date of appeal review, and on so reviewing, modify, reverse or confirm, any order passed by himself or by any of his predecessors-in-- office Provided that-
(b) an order shall not be modified or reversed unless a reasonable notice has been given to the parties affected thereby to appear and be heard ; The first contention raised by Mr. A. K. Brohi in challenge to the vires of the Rules was that the Regulation authorises a Commission to make rules "for carrying out the purposes of this Regulation", and since power of review of the orders cannot be considered as one of the purposes of the Regulation, there is no power which enables the Rule-maker to provide for review, much less suo motu review.
23. It would be seen from the bare reading of paragraph 6 of tae Regulation that review of orders made under the Regulation has been specifically provided for. It is specifically made clear that "a Commission may make rules for carrying out the purposes of this Regulation", including application for the revision and review of the orders made under the Regulation. If the interpretation sought to be placed by the learned counsel on what has been provided for by the Regulation in its paragraph 6 is accepted, then one of the basic and primary rule of interpretation will stand violated that the words of a statute must prima facie be given their ordinary literal meaning. In construing the provisions of a statute the golden rule is to adhere to the ordinary meaning of the words used, and to the grammatical construction, and it is essential to g give effect to the natural meaning of the words used therein. It is only when the language of a Statute, in its ordinary meaning and grammatical construction, leads to a manifest contradiction, or to some inconvenience or absurdity, hardship or injustice, presumably not intended, a construction may be put upon it which modifies the meaning of the words and even the structure of the sentence. Also if language used by the Legislature is ambiguous, and the intention cannot be gathered on a plain reading of the statute, then and then alone the question of assigning a meaning to it by way of interpretation arises, but that again must be in conformity with the other provisions of the statute. If the language is clear, unambiguous and plain in its meaning, there is no scope for the Court to give an interpretation to it which the language cannot bear. As observed by their Lordships of the Supreme Court in PLD 1969 SC 241: "The purpose of construction or interpretation of a statutory provision is no doubt to ascertain the true intention of the Legislature, yet that intention has, of necessity, to be gathered from the words used by the Legislature itself. If those words are so clear and un-mistake-able that they cannot be given any meaning other than that which they carry in their ordinary grammatical sense, then the Courts are not concerned with the consequences of the interpretation however drastic or inconvenient the result, for, the function of the Court is interpretation, not legislation. In construing an enactment, passed by a legislative authority it is also not permissible for the Courts to rely upon oral declarations of the intention of the law-giver, made at the Bar of the Court, if the language used in the legislative enactment is not reason--ably capable of bearing such a meaning. But what is permissible is this that "where the language of a statute, in its ordinary meaning and grammatical construction, leads to a manifest contradiction of the apparent purpose of the enactment, or to some inconvenience or absurdity, hardship or injustice, presumably not intended, a construc--petition may be put upon it which modifies the meaning of the words and even the structure of the sentence", because, "where the main object and intention of a statute are clear, it must not be reduced to a nullity by the draftsman's un-skilful-ness or ignorance of the law, except in a case of necessity, or the absolute intractibility of the language used."
24. Since the Regulation in its paragraph 6 specifically provides that a Commission may make rules for carrying out the purposes of the Regulation, including applications for the revision and review of orders made under the Regulation", there is hardly any reason to interpret this provision of law in the manner as to exclude the rule-making power that is clearly provided for and made available to the Rule-making authority in regard to making a provision for review. It is also difficult to accept the contention that providing for power of review is not one of the purposes of the Regulation. It would be seen that the Regulation places drastic restrictions, on owner--ship and possession of land, and also makes provisions for grant of land to tenants, etc. A Commission constituted under Paragraph 4 for carrying out the purposes of the Regulation is authorised by virtue of Paragraph 5 to delegate the powers exercise-able by it to any of its members, officers or authority subordinate to it, subject to such conditions, including provisions as to appeal, revision or review, if any, as may be specified.
25. The Regulation envisages large number of powers of different nature to be exercised by the Commission m order to carry out the purposes of the Regulation. It is inevitable, that orders made under the Regulation for carrying out its purposes may be required to be reviewed, apart from being corrected by way of appeals and other remedies. There is, therefore, no reason to hold that making a provision for review is not one of the purposes of the Regulation. Moreover, if such an interpretation is to be placed then the clear and unambi--guous words of paragraph 8 providing for power to make rules regarding review of the orders shall have to be omitted. There is no reason for making resort to such a recourse. Nothing is to be added or subtracted from the words used by the Legislature in a statute is the first golden principle of inter--pretation for it is not to be assumed that the Legislature has used the words in vain.
26. At this stage we may also deal with the contention of Mr. A. K. Brohi that it is not necessary that the word "including" in paragraph 6 be inter--preted in the manner as to enlarge the meaning of the phrase occurring in it. The well-established rule of interpretation, on the other hand, is that the word `includes' is used as a word of enlargement and it ordinarily implies that something else has been given beyond the general language. Precisely it to add to the General Clause as Precise which does not naturally belong to it. The phrase "shall include" is as said by Lord Watson in Diworth v.
27. New Zealand Commissioner of Stamps (1829 A C 99) "used in order to enlarge the meaning of words or phrases occurring in the body of the statute, and where it is so used these words or phrases must be construed as comprehending not only such things as they signify according to their natural import but also those things which the interpretation clause declares that they shall include."
28. Their Lordships of the Supreme Court in the case of Messrs Osmania Glass Sheet Factory Ltd., Chittagong v. Sales Tax Officer, Chittagong (PLD 1971 SIC 205) observed that "the words `including' or `shall be deemed to include' is very generally used in interpretation clause in order to enlarge the meaning of words and phrases occurring in the body of the statute." That is how, we feel, the words `including' in paragraph 6 is to be interpreted, and it is not meant by the Law-maker to be read as `excluding' which in effect is the plea raised by Mr. A. K. Brohi.
29. It was also the contention of Mr. A. K. Brohi that if at all the rule--making power to review was authorised under paragraph 6, then it could be exercised only on an application, and not suo motu.
30. In this behalf of the contention was that the words "and applications for the revision and review of" logically exclude power of review suo motu. It would however, be noticed that the regulation, in paragraph 4, has authorised the Rule-Making Authority to make rules for "review of orders made under the Regulation," and the general power having been given, there appears to be no reason to restrict the scope of the power of rule-making only to cases of applications for review, and not suo motu. The word "application" in paragraph 6 is immediately followed by the words "for the revision " these words are then followed by the word `and', thereafter by "review of".
31. The words "review of" are not preceded by the word "application". It is occasionally found necessary to read the conjunctions `or' and `and', as one, for the other, to give effect to legislative intention. It is also not to be forgotten that parallel provision was made in paragraph 6 of the West Pakistan Land Reforms Regulation (M. L. R. 64), in which the language used was identical. The rules framed under that paragraph were also practically in the same words. These provisions of law have come up for interpretation in many cases before the High Courts as well as before the Supreme Court of Pakistan. We may therefore usefully refer to the case of Muhammad Salim and another v. The Land Commissioner etc. (PLD 1964 B 115), in which the same contentions as raised by Mr. A. K. Brohi were examined and decided as follows :- "The contention of the learned counsel for the petitioners was firstly that the period of limitation of 10 days provided in this rule applied both to a review suo motu and also upon an application by the party aggrieved. Secondly, it was contended that even if it was found that there was no limitation for a review suo motu even then this was not a case of a suo motu review but a review upon an application by the party aggrieved and, therefore, the limitation of 10 days was clearly applicable and the Land Commissioner acted with illegality in exercising his powers of review upon an application which was hopelessly time-barred. It was agreed that in view of the comma placed after the word `behalf' in rule 11 and the second comma placed after the word order it was intended that the time of 10 days' limitation was to govern the power of review by the Land Commissioner both in the case of an application by the -party interested as also when he acted upon his own motion. The argument would appear to be plausible and indeed in a judgment of the Division Bench of the Karachi Seat of the West Pakistan High Court in case of Haji Khair Muhammad Khan v.
32. State PLD 1963 Kar. 157, it was held that the punctuation in rule 11 was defective but it was observed that punctuation was not an essential part of the statute and by reading a comma after the words "of his own motion" and having regard to the purposes of the Act it was held that the power of review suo motu without limit of time was consistent with reason.
33. We have approached the matter from another angle. We are inclined to the view that the words "may of his own motion" are to be read disjunctively from the words "on an application of any party interested made to him in that behalf, within 10 days from the date of the order". These two pieces are joined by the word `or'. If these two pieces are read disjunctively then it will follow that the words "within 10 days" relate to the making of the application by any party interested. This construction is supported by the fact that the review itself could not have been intended to have been done within 10 days. But that would be the result if we were to accept the inter--pretation suggested by the learned Advocate for the petitioners. If we do not read the two pieces mentioned above disjunctively the Land Commissioner, if he acted upon his own motion would have to review his order or the order of his predecessor within 10 days from the date of the order which was sought to be reviewed. This would lead to obvious absurdities. For instance, an order cannot be reviewed by the same Commissioner who passed the order without giving reasonable notice to the parties affected, to appear and be heard. Then in the case of a review of an order by his predecessor he would first have to obtain sanction of his superior. Neither of these two things might be possible within the period of 10 days. That being so, the power of review suo motu would become illusory.
34. This clearly could not have been the intention of the framers of the rules. In fact, the Chief Land Commissioner, who was the member of the Land Com--mission and who framed the rule, has circulated the interpretation, that no limitation was intended for a review suo motu, to all the Land Commissioners and Deputy Land Commissioners in West Pakistan. We, are, therefore, of the opinion that the period of 10 days' limitation as provided by rule 11 applies to the making of application by inter--ested party and not when the Commissioner (this would include the; Chief Land Commissioner, Land Commissioner and the Deputy Land Commissioner who are all mentioned in rule 11 acts upon its own motion. We agree that the drafting of this rule is bad and clear words such as are used in rule 12 should have been used to avoid the difficulty of interpretation as has arisen in this case because of the manner in which rule 11 has been framed."
35. It is well settled rule of construction that when a statute is repealed and re-enacted and words in the repealed statute are reproduced in the new statute, they should be interpreted in the sense which had been judicially put on them under the repealed Act, because the Legislature is presumed to be acquainted with the construction which the-Courts have put upon the words, and when they repeat the same words, they must be taken to have accepted the interpretation put on them by the Court as correctly reflecting the legislative mind. In the case of Messrs M. M. Ispahani Ltd. v. Messrs Pakistan Trading Co. (PLD 1966 Dacca 54), K. M. Hassan, J. Observed :- "It is the rule that, where words and expression in a statute are plainly taken from earlier statutes in pari materia which have received judicial interpretation, it must be assumed that the Legislature was aware of such interpretation and intended it to be followed in later enactments. I would, accordingly, conclude that it may be inferred that the Legislature intend the words used in section 21, Arbitration Act, 1940, to be understood as they were understood in their previously accepted meaning. There would seem to be no basis for the view that the Legislature intended to deprive the parties to a civil litigation from settling their disputes by arbitration after the termination of a suit and when an appeal is pending. The distinction between statutes which codify and those which consolidate the law has been well summarised in paras. 770, 771 of Volume 31, Halsbury's Laws of England (Hailsham, 2nd Edition);
770. In construing a codifying statute the proper course is, in the first instance, to examine its language and to ask what is its natural meaning. It is an inversion of the proper order of consideration to start with inquiring how the law previously stood, and then, assuming that it was probably intended to leave it unaltered, to see if the words of the enactment will bear interpretation in conformity with this view. After the language has been examined without presumption, resort may be had to the previous state of the law for the construction of provisions of doubtful import, or of words which have acquired a technical meaning. The same words used in different codes may have different meanings in each code according to the intentions of the statutes having regard to the mischiefs which they are designed to prevent.
771. If a distinction is to be drawn between statutes which codify and those which consolidate the law, it is that in constructing the matter there is presumption that the law was not intended to be altered, but this presumption must yield to plain words to the contrary, where a consolidating statute re-enacts sections that have come into existence at different previous dates, the state must be construed on the same principles as one which enacts the provisions in question for the first time------------.."
36. Their Lordships of the Supreme Court of Pakistan also confirmed this view in the case of M. Abdul Bari and others v. West Pakistan Soil Reclamation Board (PLD 1966 SC 451) in these words: -- "Where certain words have been given a statutory definition in one statute and the same words are used in a similar connection in a later statute then, in the absence of any contrary indication in the later statute, it may be presumed that the same meaning attaches to the said words."
37. We would, therefore, construe and interpret the provisions of para--graph 6 of the regulation and the rules made thereunder in the same meaning as was given to the parallel provisions of the Martial Law Regulation 64. In the light of this view, the challenge to the vires of the rules made by Mr. A. K. Brohi must fail.
38. There is, however, great force in the contention raised by Mr. A. K. Brohi, that notice issued on the counsel of the Petitioner No. 1 on 19-9-72 at Khairpur for hearing on 22-9-72 at Hyderabad can hardly be considered as to have fulfilled the requirement of a reasonable notice in the meaning of the Rules. It is clear that the notice did not disclose any reasons or grounds for the proposed review of the order chat had been passed by the Land Com--missioner, Sind on 23rd August 1972.
39. Admittedly, the notice was served at Khairpur, it was issued to the learned counsel for the petitioner No. 1, and hearing of the case was fixed at Hyderabad on the third day of the receipt of the notice.
40. The order passed in review was announced on the following day. By this order as many as all alienations which bad been previously considered to be bona fide and valid in terms of paragraph VII of the Regula--petition were declared as void. These alienations cover large acreage of land.
41. Not only petitioner No. 1 stood affected by the order passed in review, but many other co-owners of the lands were also adversely affected by the ex parte order passed against them without a chance of hearing being given. Some of these co-owners had joint-holdings without the petitioner No. 1 in certain areas and they had exchanged land for certain other areas in different dehs So far as those who were present on behalf of the petitioner No.1 Mr. A. K. Brohi, vehemently asserted that the Land Commissioner, Hyderabad did not even inform them the basis on which the Suo moru Review Proceedings were initiated. It is alleged in the Memorandum of the Petitions that "no basis for reviewing the order was disclosed even when application was made by Mr. Abdul Latif Memon, Advocate to the Land Commissioner on the date of hearing requesting for disclosing of the grounds or facts which had necessitated the review of the earlier order, and seeking adjournment on the hearing to afford reasonable opportunity to meet the same. The Land Commissioner declined both of these legitimate requests and proceeded to review his earlier order. When this contention was raised before the Chief Land Commissioner, Sind in appeal he merely pointed out that such application was not available on record. The Advocate put an affidavit before the Chief Land Commissioner to say that such an application was filed. On this he inquired from the Land Commissioner, Sind, Hyderabad who informed him that no such application was made. The Chief Land Commissioner did not consider the above contentions of the petitioner No. 1 and held that it was his own fault in that he had failed to apply for the grant of true copy of the grounds on which his case was re-opened. Though the affidavit of the Advocate was filed before him yet he did not appreciate the contentions put forward by the Advocate of the petitioner that the application had been deliberately taken out of the file in order to defeat the case of the petitioner No. 1. The hearing of appeal was also a mechanical process and in fact was no hearing in law."
42. These allegations have been denied in the counter-affidavit filed on behalf of the respondents; on the other hand, it is asserted that on the date of hearing for review the Advocates and the attorney of the petitioner No. 1 participated fully in the proceedings and were given full opportunity to argue the case which they did, as per report of the Land Commissioner to the Chief Land Commissioner, a copy of which annexed hereto and marked as "BB". In view of this, it is submitted that the petitioner's complaint that the notice did not contain grounds of review, has no meaning or substance. The petitioner's counsel had again a further opportunity of a full hearing of their case in an appeal before the Chief Land Commissioner and hence the petitioners cannot complain of any prejudice being caused to them by the alleged non-furnishing of grounds of review in the initial notice. It is also denied that an application was made by Abdul Latif Memon, Advocate for the petitioner, requesting for disclosure of grounds of review and seeking adjournment as alleged by the petitioner. The question of declining the request therefore did not arise.
43. We would refrain from embarking upon questions that relate to factual controversies, but the admitted facts are that the alienations which were held as void by the learned Land Commissioners, Sind by the impugned order passed in review, covered land not only in Khairpur District, but also those situated is Sanghar District. The learned Land Commissioner had received Report only from the Deputy Land Commissioner, Sind as to the alleged defects in the earlier order passed by him. This report was the basis on which he exercised suo motu power of review. The learned Land Commis--sioner, Sind, had received no report from the Deputy Land Commissioner, Sanghar or from any other officer pointing defects in the order passed by him in relation to the alienations pertaining to the land in that District. It would be noticed that the report made by the Deputy Land Commissioner, Khairpur cannot be utilized as evidence of the facts reported. These facts, therefore, could not be considered as evidence on record. So far as the alienations of land situated in District Sanghar are concerned, there was total absence of fresh material on record.
44. Indeed, the record pertaining to these alienations before the learned Land Commissioner, Sind was the same on which he had passed the earlier order dated 23-8-1972 confirming these alienations as valid. These facts give rise to the formidable argument that there was no basis on record by way of discovery to new and important matter, nor was any other sufficient reason for reviewing the order that had been passed by the learned Land Commissioner, Sind dated 23-8-1972. By this order, several alienations covering large acreage of land were held as valid, with the result that valuable rights in property accrued to many persons apart from the petitioner No. 1. Although these alienations were rendered void due to the effect or paragraph 7 of the Regulation, but after the Land Commissioner, Sind passed the order dated 23-8-1972, valuable rights in property accrued to the parties, by virtue of transfers of properties as a result of the confirmation of the alienations.
45. There can be no gainsaying that those in whom these valuable rights got vested were meant to be the parties to whom notice under the rules is required to be given. Admittedly, no notice was given to any of the persons, except the petitioner No. 1. There is, therefore, no escape from the conclusion that the impugned order passed by the Land Commissioner, Sind on 23-8-1972 not only violated the principles of natural justice but also the mandatory provisions of the rules.
46. It is well settled that the principles of natural justice are to be read as part and parcel of every statute. In making the provision for notice to be given to the party affected, the rules sought to incorporate only what is otherwise to be read into them, in spite of absence of such a provision. It will be noticed that the requirement of the rules is that a reasonable notice has to be given to the parties affected by the order proposed to be passed in terms of the notice, to appear and be heard. Their Lordships of the Supreme Court had the occasion to interpret the requirement of similar provision made in sub-clause (5) of section 20 of the Displaced Persons (Compensation and Rehabilitation) Act in a case reported in PLD 1971 SC 61. After reviewing the case-law on the subject held: "Bearing these principles in mind, I have reached the conclusion that sub-clause (5) of section 20 of the Act is mandatory in character and placed a limitation on the jurisdiction of the revising authority to make any adverse order against a person without giving him opportunity to show cause against it. If such an order is made without fulfilment of this pre-requisite, it would certainly lack jurisdiction.
47. The argument that the appellant had an opportunity of being heard by the Settlement Commissioner, which is sufficient redress for his grievance, may be well-founded when the grievance is made to rest on the principle of natural justice viz. Audi alteram partem (no body is to be condemned unheard). But when, as already stated above, an absolute requirement of the statute has been defied, the order passed is a nullity. It was held by this Court in the case of Yousuf A.I v. Muhammad Aslam Zia as follows: If on the basis of a void order, subsequent orders have been passed either by the same authority or by other authorities, the whole series of such orders, together with superstructure of rights and liabilities guilt upon them, must, unless some statute or principle of law, recognizing as legal the changed position of the parties, is in operation fall to the ground, as such orders have as little legal foundation as the void order on which they are founded."
48. This decision applies with full and equal force to the cases of the petitioners before us. We, therefore, following the view taken by their Lordships of the Supreme Court have no hesitation in reaching the conclusion that the impugned order passed against the petitioners are void in law.
49. The important question that yet remains, to be resolved, however, is whether interference is permissible under Article 201 of the Interim Constitu--petition even if the impugned orders are held as void on the view taken above. The hurdle pointed out is the one contained in Article 281. It was vehe--mently contended by the learned Attorney-General that interference with the impugned orders would not be permissible even on the principles laid down by their Lordships of the Supreme Court in the case of State v. Zia-ur--Rehman (PLD 1973 SC 49) but now this question does not even arise due to the change brought about by the Constitution (Sixth Amendment) Order, 1973, in sub--clause (2) of Article 281. This in its amended form reads: "(2) All orders made, proceedings taken and acts done by any authority or by any person, which were made, taken or done, or purported to have been made, taken or done, on or after the twenty- fifth day of March 1969, in exercise of the powers derived from any President's orders, Martial Law Regulations, Martial Law Orders, enactments, notifications, rules, orders, or bye-laws, or in execution of any orders made or sentences passed by any authority in the exercise or purported exercise of powers as aforesaid, shall be deemed notwithstanding any judgment of any Court to be and always to have been validly made, taken or done, and shall not be called in question in any Court."
50. This constitutional provision was considered by a Division Bench of Lahore High Court in the case of Saeed Ahmed Khan v. Federation of Pakistan, (Writ Petition No. 76/S of 1973) and it was held that even in its amended language, clause (2) of Article 281 is not comprehensive enough to validate corum non judice or mala fide acts.
51. An order held void in law by virtue of violation of principles of natural justice is nonetheless void than the one held void as an act done corum non judice or without jurisdiction or mala fide. A void order is no order in law, its weight is zero m law, it does not exist, and it need not be set aside because law does not recognize its existence. If an act done corum non judice or mala fide is void, to the same effect is an act which violates the principles of natural justice. All these being zeros in law, I cannot persuade myself to distinguish one zero from the other. If an order is held as 'void on the ground of violation of principles of natural justice, it does not exist in law. What has no existence cannot be sustained in the purported exercise of power under the Regulations, for the exercise itself was a futility. In view of this clear position, we find no escape from the conclusion that impugned orders passed in these cases do not fall within the protection granted by clause (2) of Article 281 of Interim Constitution.
52. Two courses are now left open to us one being to quash the impugned orders and direct retrial of the case by the Land Commissioner, Sind in review proceedings initiated by him under the notice dated 19-9-1972, and the other to leave the petitioners to avail all the final remedies available under the statute itself. After giving anxious consideration to the facts and circum--stances of these cases, we feel that it would be appropriate to make resort to the second course of action.
53. This would not only give finality to the proceedings, but the cases, would appropriately be considered at the highest level in the department. It is well settled that for obtaining relief all the statutory remedies are to be exhausted first, before resort is made to Constitutional means. These petitions were liable to be dismissed, in the first place, on the ground that the petitioners had made no resort to the remedy made available by the Regulation in its paragraph 29. It will be seen that the revisional powers of Federal Government under this paragraph are wide enough to correct both the legality as well as the propriety of an order passed under the Regulation. Even otherwise, the Federal Government is competent to deal with these cases in exercise of suo motu Revisional powers. By virtue of these powers the Federal Government is competent to deal with any case and pass orders in the original jurisdiction under the Regulation. We, therefore, direct that the cases of the petitioners shall be examined by the competent authority in revisional jurisdictional under Land Reforms Regulation, 1970. In the circumstances, there will be no orders as to costs.
54. KHUDA BAKHSH MARRI, J.-----I agree.
55. K. B. A.