' MIAN ALLAH NAWAZ, J.---This judgment will dispose of Constitution Petitions bearing Nos. 16/84 and 17/84, as these were heard together and involve examination of identical question of law as well as facts.
2. Facts of W.P. No, 16/84: ' Few facts, relevant for the disposal of this petition, are: that Muhammad Yousaf Ali Shah/petitioner, was the owner of agricultural land measuring 390 acres, 1 Kanal and 9 Marlas, situated in the area of village Kot Makhdoom and Ghauspur, in Tehsil and District Bahawalnagar. By means of oral sale incorporated in Mutation No, 181, sanctioned on 31-12-1974, he alienated agricultural land measuring 156 Kanals, 8 Marlas situated in village Kot Makhdoom in favour of Abdullah and others.
By means of yet another transaction embodied in Mutation No, 188, dated 28-8-1975, he sold another piece of agricultural land measuring 25 Kanals 10 Marlas situated in the same Revenue estate to one Gauhar Ali. He, thereafter, made yet another sale of another piece of agricultural land measuring 100 acres situated in the same Revenue estate by virtue of registered deed dated 5-1- 1977. With the promulgation of Land Reforms Act, 1977 (hereinafter to be described as the Act), he filed a declaration wherein he mentioned above transactions. The Deputy Land Commissioner, Bahawalnagar, after due scrutiny, treated the above transaction as void ab initio and counted them in the holding of the petitioner. On this finding, he held that the petitioner was owner in possession of agricultural land equivalent to 2372 Produce Index Units (shortly stated as PIUs) situated in Kot Makhdoom, over and above the permissible holding and so resumed excess land equivalent to 2371 PIUs. Feeling dissatisfied with this decision, the petitioner preferred an appeal which was accepted by the Land Commissioner, vide an order dated 1-12-1977 and the case was remitted to the Deputy Land Commissioner with the direction to re-determine the entitlement of petitioner by excluding the above sale from his holding. Pursuant to it, the Deputy Land Commissioner accepted the abovementioned transactions of sale and certified that the petitioner was not hit by the provisions of the Act, vide an order dated 27-1-1979.
3. This was not the end of the matter. The Federal Land Commission Inspection Team, however, took up the matter, scanned the record and came to the conclusion that the transaction of sale made by the petitioner vide registered sale-deed dated 5-1-1977 was hit by section 6 of the Act and so it could not be counted in his holding. Having held so, the Federal Land Inspection Team directed the appropriate authorities to resume agricultural land equivalent to 1434 PIUs from the holding of the petitioner. This occurred vide report dated 29-12-1979. Consequently the Land Commissioner, Bahawalpur, by means of order dated 27-1-1979 set at naught the registered sale- deed dated 5-1-1977 and remitted the case back to the Deputy Land Commissioner for redetermination of holding of petitioner. Feeling aggrieved, the petitioner filed revision petition which was rejected by the Additional Chief Land Commissioner vide order dated 20-7-1983. The revision petition by the petitioner, too, failed before the Federal Land Commission. This is how this Constitution petition has come to this Court.
Facts of W.P. No, 17/84:
4. Mst. Imam Saim, petitioner was the owner of 415 Acres, 5 Kanals, 17 Marlas in the area of two villages namely Kot Makhdoom and Ghauspur, situated in Tehsil and District Bahawalnagar. She had alienated the agricultural land measuring 62 acres, 4 Kanals, situated in village Kot Makhdoom by means of registered sale-deed dated 5-1-1977. With the advent of the Act, she filed declaration wherein the mention of above sale transaction was made. The Deputy Land Commissioner, after scrutiny of the declaration, did not accept it and held that it was violative of section 6 of the Act and so counted it in the, holding of the petitioner. On this finding, the learned Deputy Land Commissioner, resumed an area equivalent to 3262 PIUs from her holding. On appeal, the learned Land Commissioner accepted the appeal, remanded the case to the Deputy Land Commissioner for redetermination of the entitlement of the petitioner. Pursuant to it, the Deputy Land Commissioner upheld that abovementioned transaction of sale.
5. This was not the end of the matter in this case also. The Federal Land Commission Inspection Team, took up the matter, scanned the record and came to the conclusion that the transaction of sale made by the petitioner vide registered sale-deed dated 3-1-1977 was hit by section 6 of the Act. On this conclusion, the Federal Land Commission Inspection Team held that agricultural land equivalent to 1434 PIUs was resumable from the petitioner. The appropriate authorities were directed to proceed in the light of above finding. Consequently, the Land Commissioner, Bahawalpur Division, vide order dated 19-1-1983, held that the sale made through registered deed dated 5-1-1977, was a void transaction and directed the Deputy Land Commissioner to redetermine the entitlement of the petitioners after including the land alienated through registered sale-deed dated 5-1-1977. The revision petition by the petitioner failed before the Additional Chief Land Commissioner, Punjab, as well as before the Federal Land Commission. Feeling aggrieved from the above orders the declarant has filed the Constitution Appeal No, 17/94.
6. The arguments advanced by the learned counsel for the petitioners can be conveniently summarized as below: ' Firstly; that the Land Commissioner had passed the impugned order dated 19-1-1983 in a mechanical obedience to the report of the Federal Land Commission Inspection Team dated 29- 12-1979 and had not applied his mind to the facts and circumstances of the case. According to the learned counsel, the impugned order was mechanical, stereo type in nature and was, therefore, nullity in the eyes of law and of no lawful consequence. On this premises it was further suggested that consequential order passed by the Additional Chief Land Commissioner, Punjab, as well as the Federal Land Commission are without any legal support being superstructure of a nullity.
' Secondly; that the Act was promulgated on 9-1-1977. It repealed the Land Reforms Ordinance, 1977 with effect from that date. The latter Ordinance had been enforced with effect from 5-1-1977. On the basis of these facts, it was canvassed that the registered sale deeds dated 5-1-1977 were not hit under section 6 of the Act. According to the learned counsel, the Act has not provided any Saving clause in order to indemnify actions taken, obligation incurred under section 6 of Ordinance. In this legal background, the Land Commissioner, nor the Additional Chief Land Commissioner nor the Federal Land Commission, had jurisdiction to invalidate the questioned registered sale deeds with reference to section 6 of the Act. Reliance was placed on Crown v. Haveli (PLD 1949 I. Ah. 550) and Mahreen Zaibun-Nisa v. Land Commissioner (PLD 1975 SC 397).
' Thirdly; that the Act had become effective from 9-1-1977 and so it had repealed Para. 29 of the West Pakistan Land Reforms Regulation, 1972 (hereinafter referred to as Regulation). On the relevant date, neither the Federal Land Commission Inspection Team had the jurisdiction to examine the record of the cases in hand nor the heirarchy established under the Act, had any power to annul the questioned transactions.
' Fourthly; and lastly that the provisions of Paragraphs 3, 6, 7 and 8 of the Regulation as well as sections 3, 6, 7 and 8 of the Act were declared repugnant to the Injunctions of Islam by the Shariat Appellate Bench of the Supreme Court of Pakistan in Qazalbash Wald v. Chief Land Commissioner (PLD 1990 SC 99). On the strength of this decision, it was contended that the impugned decisions were contrary to the law and merited to be set aside. Further strength was sought from Salahuddin Qureshi v. Federal Land Commission (1992 CLC 2362).
7. Chaudhry Nasir Ahmad, Advocate, who appeared as amicus curiae, contended that the transaction of sale made by Muhammad Yousaf All Shah petitioner as well as by Mst. Imam Saim petitioner were made on 5-1-1977 and so were hit by section 6 of Ordinance of 1977. According to him, these transactions were, therefore, void. Reliance was placed on Nawa-i-Wqat Publications Ltd. v. Lakshmi Insurance Company (PLD 1959 (W.P.) Lab. 980), Market Committee v. Town Committee (1992 SCMR 1403), Fakharuddin v. Hasinuddin Qureshi (PLD 1980 Lah. 778), Noor Hussain v. The Special Court (1980 CLC 1528), Muhammad Aslam v. Deputy Commissioner, Sheikhupura (1990 MLD 1725) and Muhammad Amin v. Chief Settlement Commissioner (PLD 1966 (W.P.) Lah.
473).
8. Mr. S.M. Rizvi, A.A.-G. Has entered appearance on behalf of respondents Nos. 2 and 3 and Mr. N.A.
Bhatti, Advocate for respondent No, 1, both of them have supported the impugned decision.
9. From the above narration, the questions falling for determination are:--
(1) Whether the impugned orders dated 19-1-1983 passed by the Land Commissioner, Bahawalpur, in purported exercise of suo motu revisional jurisdiction in both cases, are void, ab initio and so are of no lawful consequences and whether the consequential orders passed by the Additional Chief Land Commissioner, Punjab, dated 20-7-1983 and of Federal Land Commission dated 23-11-1983, in both cases, are superstructure of nullity and are liable to be set aside?
(2) Whether the Land Commissioner, Bahawalpur Division had any power under section 27 of the Act to pass the orders dated 19-1-1983 impugned in both these petitions.
10. Having noted the facts of the case, the arguments of the parties and the point for determination, we now proceed to determine these questions one by one. We take question No, 1 first. Before we proceed to deal with the contentions of the parties in regard to this point, we feel it necessary to state that it is a settled proposition of law that when a power is conferred on a particular person then that person can neither transfer its exercise to another person nor can exercise it without application of his mind to the facts and A circumstances of that case. What is required, is that he has to exercise that power with application of his independent mind to the facts and circumstances of that case regardless any extraneous/dictative influence. Reference may be made to a passage from celebrated work "Introduction to Administrative Law by David Foulkes, Fourth Edition, which is as under: ' An act may be ultra vires because it is done by the wrong person. This raises particularly the problem of delegation of functions. Where a power is conferred on one person then the general rule is that he cannot transfer its exercise to another person--delegatus non potest delegare. In Allingham v. Minister of Agriculture and Fisheries (1947) 1 All ER 780, the Minister had by regulations lawfully delegated to a County War Agricultural Committee his powers to give directions concerning the use of agricultural purpose of land specified in the notice of direction. The committee decided that eight acres of sugar beet should be grown by the occupier of certain land but left it to its executive officer to select the acres to which the direction would apply. The officer consulted a local sub-committee appointed to make recommendations to the committee; acting on its advice he served a notice on the occupier specifying the acres. The notice was held to be invalid as the committee had left to the officer the duty of deciding something they had to decide for themselves.
' Of course, where the delegate is expressly empowered by statute to sub-delegate, then no objection can be made. Section 101 of the Local Government Act, 1972 gives a wide power to local authorities to make what are popularly called 'agency arrangements' (though the section does not use the word agent or delegate). By it a local authority may `arrange for the discharge of any of their functions (a) by a committee, a sub-committee or an officer of the authority; or (b) by any other local authority."
' Also see Mehtab Khan v. Rehabilitation Authority (PLD 1973 SC 451). Applying this principle to the facts of cases in hand, it is quite clear, that when the impugned orders were passed by the Land Commission neither there was any appeal nor any revision pending adjudication before that authority. It is also not in dispute that the Land Commissioner had not initiated any suo motu revisional proceedings against the petitioners. What had happened, was, that he commenced proceedings in pursuance of dictative report of the Head of Inspection Team Federal Land Commission, Bahawalpur Division, 29-Masson Road, Lahore, dated 29-12-1979. This report was sent to the Chief Land Commissioner, Board of Revenue, Punjab, Lahore, vide Memorandum No,11/FLC/BWP/79-545. In pursuance of this Memorandum the proceedings were commenced and the impugned orders were passed.
11. From the above undisputed events, it is, but, clear that the Land Commissioner, Bahawalpur Division had not commenced suo motu proceedings himself and had acted mechanically on the initiative of the Head of Inspection Team, Federal Land Commission. This being the position, the impugned order passed by the Land Commissioner was in utter defiance of legal requirement stated above. We, therefore, have no hesitation in coming to the conclusion that orders passed by the Land Commissioner in both cases were wholly without jurisdiction, void, ab initio and nullity in the eye of law. Resultantly, the order passed by the Additional Chief Land Commissioner and the Federal Land Commission, having built upon void orders fall to the ground as being superstructure on nullities. These are, therefore, not better than orders passed by the Land Commissioner.
Reference be made to Ranaque Ali v. Chief Settlement Commissioner (PLD 1973 SC 236), Chief Settlement Commissioner v. Muhammad Fazil (PLD 1975 SC 331) and Amina Begum v. Deputy.
Settlement Commissioner, Circle-I (PLD 1980 Lah. 571).
12. As regards the second question, we find that this question is not free from difficulty. We, therefore, intend to deal it in depth. As already stated, Act of 1977 was enforced with effect from 9- 1-1977. It intended to reduce the individual holding so as to secure equitable distribution of wealth.
The history of the Land Reforms Regulation started from 1959 when West Pakistan Land Reforms Regulation was promulgated in order to place a limit on the holding of the individuals in regard to land and secure just distribution of it among the citizens of this country. It was followed by the Land Reforms Regulation, 1972 (shortly stated as Regulation). This further curtailed the holding of the individual land owner. Then came the Land Reforms Ordinance, 1977, which was followed by the Land Reforms Act, 1977. By the said legislation, the limit of individual holding was reduced to 200 acres of unirrigated land which was equivalent to 8000 P.I.Us. Undisputedly, the Act and the Regulation relate to same subject. The underlying purpose of these Statutes was to secure equal distribution of agricultural land by taking excess land from the land owners and distributing it to the needy and impoverished toiling peasants. These legislations were built on the principle of distributive justice. In the latest legislative measure number of far-reaching changes were made.
The ceiling of individual holding, constitution of Federal Land Commission and constitution of the Commission, were changed for better appreciation of this Statute, it would be useful to have a rapid survey of its relevant provisions. Section 3 of the Act prescribes the limits on individual holding of land. Section 6 enacts that any transfer of land, any creation of right or interest and encumbrances on any land made, on or after the commencement of the Act, by a person holding immediately before that, an area exceeding the prescribed limits, shall be void and of no lawful consequence. Section 7 mandates Provincial Land Commissioner to issue a notification, requiring all the persons to submit their declaration. Section 18 lays down the powers and functions of the Federal Land Commission. Section 19 stated the power of the Provincial Government. Section 20 enables the appropriate authority to set up necessary hierarchy under the Act in order to carry its purpose. Section 25 states that all the proceedings which were pending before the Federal Land Commission, would stand abated unless the Federal Government directed otherwise. Here comes section 27 of the Act which has a decisive bearing on the fate of this case. It actually is substitute of Para. 29 of the Regulation. In order to appreciate both of these provisions, it will be useful to reproduce them in extenso: Section 27 of the Act: Para. 29 of the Regulation: "The Federal Government The Government or any person authorised may, at any time, of its own by it in that behalf, may at any time, of its or motion or otherwise, take his own motion or othe cognizance of a case not record of any case or proceedings under this taken up by a commission Regulation (or under the repealed or withdraw a case pending Regulation) which is pending or in which a before a commission, call Commission or any other authority for a case" decided by a appointed under this Regulation (or under commission of any the repealed Regulation) other than the authority empowered by a Federal Land Commission constituted under commission in this behalf, paragraph 4-A, has passed an order, for the and pass such order as it purpose of satisfying itself or himself about may deem necessary and the correctness, legality or propriety of such the order so passed shall an order, and may pass such order in be final: relation thereto as the Federal Government or, as the case may be, such person thinks Provided that no order, fit under this section, shall be passed, adversely affecting the rights of any person, unless such person has been given an opportunity of being heard." Provided that the Federal Government may, from time to time, specify the cases or class of cases in which it desires to pass final orders: ' Provided further that no order shall be passed under this paragraph revising or modifying an order affecting any person unless such person has been afforded an opportunity of being heard: ' Provided further that the record of any case or proceedings in which a Commission or other authority has passed an order shall not be called for under this paragraph by the Federal Government or the person authorised by it--
(a) of its or his own motion, after the (30th day of November, 1976) or
(b) on the application of any aggrieved person made after the expiration of sixty days from date of such order or from the enactment of the Land Reforms (Amendment) Act, 1973, whichever is later, excluding the time requisite for obtaining a copy of such order."
13. From the comparative study of Para. 29 of Regulation and section 27 of the Act, it becomes clear to us that under section 27 of the Act the Federal Government became sole repository of power to take cognizance of the cases which were not taken by the Federal Land Commission or withdraw any case pending before the Commission and pass such order which it deems necessary. The bare reading of Para. 29 of the Regulation indicates that the Federal Government or any other person authorised by it had a power to call for the record of any case, proceedings under this Regulation or under the repealed Regulation which were pending before the Commission or any other authority appointed under this Regulation or under repealed Regulation for the purpose of satisfying its correctness, legality or propriety of such order, and may pass such order as it deemed fit. It further states that the Federal Government may from time to time particularise the cases or class of cases in which it desires to pass final order. This para. Had two provisions (a) and (b). From the above examination, we have no hesitation in concluding that the scope of section 27 of the Act is radically different from para. 29 of the Regulation. It is well-established principle of construction of Statute that a subsequent legislation on C the same subject would, by necessary implication, repeal the earlier law to the extent of mutual inconsistency or repugnancy. It will be advantageous to refer to statement of law on this subject from `Craies on Statute Law (1963 Edn. Which reads as follows: "Implied Repeals:--Where two Acts are inconsistent or repugnant, the later will be read as having impliedly repealed the earlier. The Court leans against implying a repeal, 'unless two Acts are so plainly repugnant to each other that effect cannot be given to both at the same time, a repeal will not be implied. Special Acts are not repealed by general Acts unless there is one express reference to the previous legislation or unless there is a necessary inconsistency in the two Acts standing together.' The latest expression of the will of Parliament must always prevail.' it does not matter whether the earlier or the later enactment is public, local and personal, or private, or is penal or deals with civil rights only, and the rule is equally applicable to Orders-in Council or Rules of Court if they have statutory force and are made under authority empowering the rule-makers to supersede prior enactments as to procedure. Before coming to the conclusion that there is a repeal by implication the Court must be satisfied that the two enactments are so inconsistent or repugnant that they cannot stand together before they can, from the language of the later, imply the repeal of any express prior enactment--i,e,, the repeal must, if not express, flow from necessary implication. Thus, in Ellen Street Estates v. Minister of Health (1934) 1 K.B. 590, the Court of Appeal held that section 46 of the Housing Act, 1925, so far as it was inconsistent with the similar Act of 1919 had impliedly repealed the latter Act, although the Act of 1925 provided that compensation was to be assessed in accordance with the 1919 Act. And in The Dart, the Court of Appeal held that section 45 of the Supreme Court of Judicature Act, 1873, as to appeals from county Courts, was impliedly repealed by section 10 of the County Courts Act, 1875, which came into operation on the day after the Act of 1873, and that the subsequent repeal of the 1875 Act by section 188 of the County Courts Act, 1888, did not revive repealed provisions of the Act of 1873. But where the terms of a later enactment, taken in their primary meaning, are wide enough to abrogate a prior enactment, they will be read as repealing it, unless it is fairly open to hold on the words of the later Act that an intention is manifested to cut down or restrict the primary meaning. If there is a repugnancy between two Acts passed in the same year the latter chapter of the statutes for that year prevails, and the earlier is treated as impliedy repealed.
' To determine whether a later statute repeals by implication an earlier, it is necessary to scrutinise the terms and consider the true meaning and effect of the earlier Act. Until this is done, it is impossible to ascertain whether any inconsistency exists between the two enactments. Section 2 of the Maintenance and Embracery Act, 1540, imposed a penalty on the sale of pretenced titles.
Section 6 of the Real Property Act, 1845, permitted the sale of rights of entry. The Court of Appeal held in Jenkins v. Jones (1882) 9 Q.B.D. 128, that before the enactment of that section a right of entry fell within the meaning of a pretenced title in the earlier Act, and that the effect of the subsequent Act was, not to repeal the earlier, but to restrict its application--a distinction which might have been better expressed by saying that the earlier enactment was repealed in part. In Re Douglas (1905) 1 Ch. 279, it was held that the general provisions contained in section 7 of the Mortmain, etc., Act, 1891, impliedly repealed the restrictions on the amount to be given to churches imposed by the Gift for Churches Act, 1803. In Re Smith's Estate (1887, 35 Ch. D. 589), Stirling, J. Held that the Act of 1803 was not affected by the Married Women's Property Act, 1882."
' Also see Mehtab Khan v. Rehabilitation Authority (PLD 1973 SC 451).
14. Guided by the above rule of construction, we are of the view that section 27 of the Act and Para. 29 of the Regulation are mutually inconsistent. The cases in hand are covered by section 27 of the Act. From the plain reading of this section, it becomes abundantly clear that neither the Deputy Land Commissioner, nor the Additional Chief Land Commissioner nor the Federal Land Commission had any authority, whatsoever, to initiate suo motu proceedings against the petitioner. This being the position we hold that the impugned orders passed by he Land Commissioner dated 19-1-1983, by the Additional Chief Land Commissioner, Punjab dated 20-7-1973 and by the Federal Land Commission dated 23-11-1983 (in both cases) were wholly without jurisdiction.
15. Having reached the above conclusion the question left for determination is as to what relief the petitioners are entitled. Paras. 3, 6, 7 and 8 of Regulation as well as sections 3, 6, 7 and 8 of the Act were declared repugnant to the Injunction of Holy Qur'an and Sunnah by the Shariat Appellate Bench of the Supreme Court, in its celeberated decision in Qazalbash Wakf's case (PLD 1990 SC 99).
The review application of the Federal Government, was also dismissed by the Shariat Appellate Bench of the Supreme Court in Government of Pakistan v. Qazalbash Wakf (1993 SCMR 1697). The result of the above decisions is that the above-referred to provisions of the Regulation as well as the Act, stand completely obliterated from the Statute book. No doubt it is settled that when this Court finds that the actions taken/orders passed, by the subordinate authorities are without jurisdiction, it usually returns the case to such Court/Authority/Tribunal, after quashing the impugned orders. This Court ordinarily does not substitute its own judgment for that Authority/Tribunal concerned. This rule, however, is not the rule of thumb. The hall mark of the Constitutional jurisdiction is to foster substantial justice between the parties and is designed to save the citizens of the State from arbitrary and capricious actions of the State functionaries/subordinate authorities/subordinate Courts/subordinate Tribunals and save them from unlawful proceedings. Guided, by this principle, we find that the relevant provisions of the Act and Regulation stand erased from the Statute Book and so it would be futile to remit the case to the Federal Government for decision afresh under Para. 27 of the Act.
16. As a result of the above discussion these Constitution petitions bearing Nos. 16/84 and 17/84 succeed with requested relief, the orders of the Land Commissioner passed against the petitioner dated 19-1-1983, the order of the Additional Chief Land Commissioner, Punjab dated 20-7-1983 are hereby set aside as having been passed without any lawful authority. Since these petitions involved examination of difficult questions of law we are not persuaded to burden the respondents with costs.