By a memorandum (Annexure 'F') dated 9-10-1969, the Additional Commissioner (Consolidation) communicated to the Additional Deputy Commissioner (Consolidation), Lyallpur, the sanction accorded by him to the compulsory consolidation in for villages including village 91/RB, Tehsil Jaranwala, District Lyallpur. The petitioners who are opposed to consolida--tion of the village have filed this constitutional petition to challenge the validity of the order.
2. The learned counsel contended that since the petitioners had always opposed the consolidation and had been representing against it, they ought to have been given an opportunity of being heard before such an order was passed. He further argued that the sanction given by the Additional Commissioner is in contravention of Memo. (Annexure 'R') which is issued by the Board of Revenue to all the Commissioners and Deputy Commis--sioners, conveying to them the decision that "the consolidation operations should, in future, be introduced where the majority of land owners demand it as provided under section 4(2)(b) and 1c) of the West Pakistan Consolida-- tion of Holdings Ordinance, 1960. In exceptional cases, the Deputy Commissioner may take action under section 4(2)(a) of the Ordinance where (a) either 51 per cent. Of the land owners desire consolidation ; or (b) where land owners owning not less than 51 per cent. Of the cultivated area express such a desire."
3. In order to answer these questions,` it is necessary to consider the provisions of the West Pakistan Consolidation of Holdings Ordinance, 1960, along with comparable provisions of the repealed Act of 1936, namely, Punjab Consolidation of Holdings Act, 1936, and the rules made under the Ordinance. Under section 3 of the Punjab Consolidation of Holdings Act, 1936, any two or more land owners in an estate or a sub-division of an estate holding together not less than the minimum area of land prescribed by rules made under section 26 could make an application in writing to the Consolidation Officer for the consolidation of their holdings but the Consolidation Officer was bound to confine the consolidation in such cases to the land owners who had agreed to the consolidation of their holdings. The consolidation of the entire estate or the sub-division of the estate could be carried on if not less than 2/3rd of the land owners in an estate o a subdivision of an estate holding not less than three-fourths of the cultivated area in the estate or the sub-division of the estate, made an application for consolidation of their holdings, or, if on enquiry into applica--tion made by two or more land owners in that estate or the sub-division of the estate, as stated above, the Consolidation Officer was satisfied that not less than two-third of the land owners holding not less than the fourths of the cultivated area agreed in writing to the consolidation of their holdings. In such latter mentioned case, the application for consolidation was to be deemed to be an application on behalf of all the land owners in the estate or the sub-division of the estate,
4. The land owners in Punjab did not exhibit sufficient interest in invoking the provisions of the Punjab Consolidation of Holdings Act, 1936, for consolidation of their holdings. The West Pakistan Consolidation of Holdings Ordinance, 1960, therefore made revolutionary changes in the method of initiation of consolidation proceedings. The provision about the rights of two or more land owners in an estate or a sub-division holding together not less than minimum area of land prescribed in this behalf has been retained in the Ordinance of 1960. By rule 4 of the West Pakistan Consolidation of Holdings Rules, 1960, it was laid down that such an application can be made in writing to the Consolidation Officer for consolidation of their holdings by two or more land-owners provided they hold together not less than two squares or two rectangles or fifty acres of land, whichever is more.
It was further provided in section 4 that where an application for consolidation of holdings is made by or on behalf of all the land owners of an estate or a sub-division and the scheme of consolidation of holdings is confirmed, such scheme shall be binding on all the land-owners of the estate of the sub-division and on every person having a right or interest or who may subsequently become entitled to such right or interest in the area included m the scheme. In addition to this, a legal fiction was created that in some cases notwithstanding the fact that there may be no application on behalf of all the land owners in the estate or sub-division, it shall be deemed as if there is such an application on behalf of all the land owners. In subsection (1) of section 3 power has been given to the Board of Revenue or any Officer authorised by it in this behalf to move the Consolidation Officer for the consolidation of holdings in an estate or a sub-division. By virtue of section 4(2) such a motion by the Board of Revenue or any Officer authorised by it in this behalf shall be considered to be an application on behalf of all the land owners in the estate or the sub- division. Similarly, it is provided by the same subsection that an application by not less than fifty-- one per cent. Of the land-owners in an estate or sub-division or land-owners not less than fifty-one per cent of the cultivated area in the estate or the sub-division, shall also be denied to be an application on behalf of all the land-owners in the estate or the sub-division of the estate. Section 5 clarifies it that where an application for consolidation is not by or on behalf of all the land- owners, it shall be confined to the land owned by the applicants, and by such other land-owners who had agreed to the consolidation of their holdings. Section 5, therefore, applies to cases where the application for consolidation has been made by less than fifty-one per cent. Of the land- owners or by persons owning less than fifty-one per cent. Of the cultivated area in the estate or sub-division or where there is no motion by the Board of Revenue or any Officer authorised by it in this behalf. Section 7 of the Ordinance provides that an application for consolidation of holdings can be rejected by the Collector on receipt of the recommendations to that effect from the Consolidation Officer.
5. Section 29 of the Ordinance authorises the Board of Revenue to make rules for the purpose of carrying into effect the provisions of the Ordinance and in particular and without prejudice to the generality of this power to make rules-
(a) prescribing the minimum area of land to be held by the persons making an application under subsection (2) of section 3 ; and
(b) providing for the particulars to be contained in any application made under subsection (2) of section 3.
Parts .H and III of the Consolidation of Holdings Rules, 1960, deal with such application for consolidation and the preliminary inquiry to be made by the Consolidation Officer in respect of such application or a motion for consolidation received from the Board of Revenue or any Officer authorised by it in this behalf. Rule 4, as stated above, provides that in order to enable some of the land owners to make an application for consolidation of their holdings, the land owners must hold together not less than two squares or two rectangles or fifty acres of land, whichever is more. Under rule 5, the Consolidation Officer shall examine the application in order to see whether it is in order. If he considers that for some reasons it should not be entertained, he shall recommend to the Collector that after affording an opportunity to the applicants and after giving them an opportunity of amending their application the application should be rejected. Rule 6 provides that if the Consolidation Officer admits the application or the Collector, after considering the recom-- mendation of the Consolidation Officer under section 7, allows the application, the Consolidation Officer shall record a formal order of its admission. Rule 7 provides for a proclamation to be made if such an application is admitted. It also provides for a proclamation to be made in the estate or sub-division of the estate concerned if he receives a motion for its consolidation from the Board of Revenue or any Officer authorised by it in this behalf. This proclamation is issued for the purpose of informing all the land owners of the receipt of the application on motion and of the date, time and place when and where he will meet them or in proximity thereof. By rule 8 it is provided that in case of an application for consolidation of their holdings by some of the land owners, the Consolidation Officer shall enquire from the persons other than the applicants as are present on the date fixed and whose buildings are situate in the estate or sub-division to which the application relates, whether they wish to join, in the application or whether they have any objection, and may make such other enquiry from the land owners present as he may think fit. It further provides that the Consolidation Officer shall make such inquiry from the land owners ' present as he deems proper even in respect of a motion for consolidation received from the Board of Revenue etc. Under sub- rule (3) of rule 8, the Consolidation Officer shall record any objections or representations made at this stage of the inquiry. At the conclusion of the preliminary inquiry, the Consolidation Officer acting under rule 9 shall make an order subject to the conditions given in the rules, which are not relevant to this case, directing that consolidation shall proceed.
6. Under .The Act of 1936, consolidation of an entire estate or sub-division of an estate could be carried on only if an application was submitted by two-third or more of the land owners owning not less than three-fourth of the cultivated area in that estate or sub-division. This provision obviously did not bring about the desired results in view of the general illiteracy in the rural areas and the land owner' inhibition of keeping their holdings intact however fragmented they may be. For this reason the rigours of the provisions for invoking the provisions of the Ordinance were relieved and liberalised by providing for an application to be made for consolidation of the entire estate or sub- division of an estate by a much lesser number of persons i.e. fifty-one per cent. Or more of the land owners owning fifty-one per cent. Or more of the cultivated area in the estate or sub-division of the estate. Power was also conferred upon the Board of Revenue or an Officer authorised by it in this behalf to move for consolidation of the estate or a . Sub-division- of the estate. This obviated the necessity of an application for consolidation by the land owners and authorised the Board of Revenue or its authorised officer to order compulsory consolida--tion in any estate or sub-division of an estate. By resort to a deeming clause in section 4 a statutory fiction was created that on such a motion it will b deemed as if all the land owners have applied for consolidation. The motion by the Board of Revenue or any Officer authorised by it in this behalf has, therefore, the force of an application by all the land owners in the estate or the sub-division of the estate notwithstanding the opposition to the consolidation by all the land owners thereof.
7. The scope of the deeming clause has been considered in a number of cases. In Commissioner of Income-tax, Bombay v. Bombay Trust Corpora--tion (AIR 1930 P C 54) it was held that "when a person is `deemed to be' something the only meaning possible is that whereas he is not in reality that something the Act of Parliament requires him to be as if he were". Lord Asquith in East End Dwellings Company Ltd. v. Finsbury Borough Council (1952 A C 109) observed as follows :- "If you are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so, also imagine as real the consequences and incidents which, if the putative state of affairs had m fact existed, must inevitably have flowed from or accompanied it. One of these in this case is emancipation from the 1939 level of rents. The statute says that you must imagine a certain state of affairs; it does not say that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs."
The High Court of West Pakistan held in Shaukat Ali v. Settlement and Rehabilitation Commissioner, Lahore (PLD 1965 Lah. 445) that : "The Court in looking at the deeming clause has to give effect to the real scope of the legal fiction without any prejudice.In the first instance, the Court has got to determine the limits within which and the purposes to which the Legislature has created the fiction. This has to has to be deemed by reference to the words used in the statute creating the fiction and full effect must be given to their natural meaning unless by doing the very purpose of creating the fiction is defeated. We have to consider the fiction and not the facts. In doing so, unless the context prohibits the necessary consequences and incidents which naturally flow as corollaries from the fiction are to be recognised and carried to their logical conclusions."
(Underlining" is mine).
Again in Begum B.
17. Sayed v. Afzal Jahan Begum PLD 1966 Lah. 967it was observed that- ---The phrase --- shall be deemed---, which is frequently employed in legislation by the statue and in notifications creates a status or an attribute for a person or thing which is not intrinsically possessed by that person or thing on whom the conferment is made. The important thing in this respect is not the meaning of the word 'deemed' but the effect of it as used in the statute."
In a recent case reported as Abdul Hakim v. Mrs. Doreen Barkat Ram this principle in Shaukat Ali's case was reiterated and it was held that full effect must be given to the natural meaning of the legal fiction and unless the context otherwise directs, all the necessary consequences and incidents which naturally flow as corollaries but be recognised and carried to their logical conclusion. Their Lordships of the Supreme Court in Begum B. H. Syed v. Afzal Jehan Begum (PLD 1970 SC 29) also held as in the case of East End Dwelling Company Ltd. v. Finsbary Borough Council that :- " . . . . . Where the statute says that you must imagine the state of affairs; it does not say shat having done so you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs."
It was also held that--- "At the same time it cannot be denied that the Court has to determine the limits within which and the purposes for which the Legislature has created the section."
Reference was made in this connection to the principle enunciated by James, L. J., In re a Levy Ex parte Walton (17 Ch. D 756) i.e.- "When a statute enacts that something shall be deemed to have been done which in fact and in truth was not done, the Court is entitled and bound to ascertain for what purposes and between what persons the statutory fiction is to be resorted to."
In view of the principle that all the necessary consequences and incidents which naturally flow as corollaries from the fiction are to be recognised and carried to their logical conclusions, it was held in Commissioner of Income-tax v. Teju Singh (AIR 1959 SC 352) that- "The fiction that the failure to send an estimate is to be deemed to be a failure to send a return necessarily involves the fiction that notice had been issued under section 22 and that had not been complied with."
8. I have already dealt with the history of the legislation and the purpose behind the Provisions conferring the powers on the Board of Revenue or the Officers authorised by it in this behalf to move for conslidation of an entire; estate as also the purpose of the legal fiction created in section 4 that such motion shall be deemed to be consensus of all the land owners in favour of the consolidation. In view of this clear provision of law it is not possible to look at the specific dissent of the land owner to consolidation. 1n fact, as held in Shaukat Ali v. Settlement & Rehabilitation Commissioner, Lahore (PLD 1965 Lah. 445) "we have to consider the fiction and not the facts". We cannot allow our imagination to boggle when it comes to the inevitable corollaries of that state of affairs. If the real facts are considered full effect cannot be given to the provisions of sections 3 and 4 of the Ordinance. This will be doing violence to their language. The corollary which naturally flows from the fiction and should be recognised and carried to its logical conclusion is that in view of the consent of the land owners to the consolidation no question arises of giving any notice of the intended motion for consolidation to be made in Annexure `F'. If the, motion by the officer authorised under section 3(l) by the Revenue Officer has the effect of an application on beuhalf of the petitioner also, I fail to understand why it should at all be necessary to give any further show- cause notice to the party consenting to consolidation.
9. It may be seen that the rules specifically deal with affording an opportunity of being heard to land owners where an application is made by them for consolidating their old holdings. No such provision has been made regarding a motion 'by the Board of Revenue or any officer under section 3(1) of the Ordinance. It has been done advisedly because of the legal fiction referred to above.
10. A show-cause notice in compliance with the principle of audi alteram partem is required, to be given on the principles as summed up in Mahmud Alarn v. Mehdi Hussain (PLD 1970 Lab. 6) that nobody can be made to suffer any harm to his rights including those relating to property, person and reputation without giving him an opportunity of being heard. But if the person referred to himself applies or is statutorily deemed to have applied for something to be done, certainly this principle would not be applicable.
11. The principle of audi alterarn partem will not be applicable to this case for another reason also.
By consolidation of fragmented holdings, a person does not suffer any harm to his rights of property. In fact section 16 of the Ordinance takes care of the proprietary or tenancy rights by providing that "a land owner or a tenant shall have the same rights in the holding or land allotted to him in pursuance of a scheme of consolidation as he had in his original holding or tenancy, as the case may be". Moreover, the object of consolidation of holdings is to remedy evil of the rural economy. This is the evil of fragmented and uneconomic holdings. Fragmentation has several disadvantages. To enumerate a few of them: (a) it renders the holding uneconomical for cultivation. Cost of cultivation in small holdings is much higher than the bigger blocks (b) it is not possible to make use of mechanical processes of cultivation in such holdings. Land is wasted in ridges and boundaries, (c) Cultivation of scattered holdings involves waste of time and energy in going from one field to another, (d) Supervision becomes difficult, (e) Irrigation of small holdings particularly by wells is difficult, (f )Profitable cultivation, use of improved method of husbandry and employment of labour saving devices is impossible. And (g) it is out of question for a land owner to develop such holdings or to make them more productive. The effect of consolidation is to consolidate the scattered plots of a land owner at much lesser number of places. It is not only beneficial to the individual land owner but also serves the national interest. It helps not only in tackling with all the evils enumerated above thus improving the lot of the land-owner but also in~ reaching the goal of achieving higher production limits.
12. The process of consolidation ensures the greatest good of the greatest number. The law and rules framed thereunder provide for securing the agreement of as great a number of land owners in the actual consolidation processes as is possible. It provides for hearing being given to the land owners at different stages of consolidation. The matter of consolidation not left to the whims of a particular officer. On the other hand, the matter is considered at different levels by Assistant Consolidation Officer, Consolidation Officer, Collector, Commissioner and the Board of Revenue.
There being, therefore, no danger of loss of property, the principle of audi alteram partem cannot be invoked merely on a motion which as stated above, amounts to an application by all the land owners for consolidation of their estate or sub-division of the estate.
13. The second argument of the learned counsel is also misconceived. The learned counsel elaborated this argument by urging that in view of the decision arrived at in Annexure 'H' the delegates of the Board of Revenue could not make a departure from it, and could not move the Consolidation Officer for consolidation of the estate without obtaining the consent either of the majority of the land owners of 51 per cent of the land owners or land--owners owning 51 per cent.
Of the cultivated area. There is no, substance in this argument. Section 3 does not talk of delegation of powers by the Board of Revenue. The power is conferred specifically, on one hand, upon the Board of Revenue and on the other upon any officer authorised by it. The principle of delegation that the delegates is bound by the condition on which the delegation is made is not, therefore, applicable. More--over, this is merely an administrative instruction which cannot take away the jurisdiction conferred by section. 3(l) of the Ordinance. If the petitioner feel aggrieved against it, their proper remedy is through a representation t the same authority who moves for consolidation of their estate or the Board of Revenue.
14. I find no merit in this petition and dismiss it. Since no one has appeared on behalf of the respondents, there will be no order as to costs.