' All four of these petitions are inter-related and involve the same basic questions of law. I would, therefore, dispose them of with one order.
2. Revision Petition No,2750 of 1984, Muhammad Bakhah etc., v. Jaindai etc. Relates to Mutation Nos.1568 and 1569. Both these mutations were rejected by the Revenue Officer by his order dated 5-3-1981 as being violative of the provision of M.L.R. 115 concerning inalienability of certain classes of holdings. The Assistant Commissioner/Collector by his order dated 24-4-1983 up-held the order dated 5-3-1981. The Additional Commissioner accepted the revision petitions of the vendees by his order dated 13-2-1984 and declared that these two mutations were not violative of M.L.R. 115 and therefore should be sanctioned. The Additional Commissioner also took notice of Mutation Nos.1339, 1346, 1348, 1351, 1553, 1379, 1378 and 1570, and declared that they were apparently hit by M.L.R. 115 (para. 24) and directed that fresh orders be passed on them after hearing the parties, in accordance with the law and the facts of the cases. This order of the Additional Commissioner dated 13-2-1984 has been assailed in Revision Petition No,2750 of 1984 here.
3. Revision Petition No,946 of 1989, Muhammad Iqbal etc., v. Mst Shamim Bibi etc., relates to Mutation Nos.1570 and 1824. Mutation No,1570 was cancelled by the Revenue Officer on 21-7-1988 under the orders of Assistant Commissioner/Collector dated 8-5-1988. Mutation No,1339, already sanctioned, was cancelled by mutation No,1824 sanctioned on 24-6-1984 under the orders of the Additional Commissioner dated 13-2-1984, referred to above. The Assistant Commissioner/Collector by his order dated 8-5-1988 upheld mutation No,1824, while he accepted mutation No,1570 to the extent of 136 Kanals and 14 Marlas. The Additional Commissioner by his order dated 12-6-1989 declared that mutation No,1339 was rightly cancelled. Hence Revision Petition No,946 of 1989.
4. Petition No,610 of 1986, Muhammad Bakhsh v. Naheed Ghulam Fatima etc. Relates to mutation No,1832 sanctioned on 24-6-1984 by which mutation No,1378 sanctioned on 20-1-1979 was cancelled. The Assistant Commissioner/Collector by his order dated 23-12-1984 remanded mutation No,1832 and the Additional Commissioner by his order dated 21-11-1985 virtually upheld this order of the Assistant Commissioner/Collector by ordering that the Revenue Officer should decide these mutations afresh on merits, drawing attentions to the orders of the Additional Commissioner dated 13-2-1984 (referred to above). Hence Revision, Petition No,610 of 1986.
5. Revision Petition No,612 of 1986, Fida Hussain .Etc. v. Naheed Ghulam Fatima etc. Relates to mutation No,1836 sanctioned on 24-6-1984 which cancelled mutation No,1348 sanctioned on 21-11- 1978. The Assistant Commissioner/Collector by his order dated 23-12-1984 remanded mutation No,1836, and the Additional Commissioner by his order dated 21-11-1985 virtually maintained the order of the Assistant Commissioner/Collector and ordered the Revenue Officer to decide this mutation afresh on merits, drawing attention again to the orders of the Additional Commissioner dated 13-2-1984. Hence Revision Petition No,612 of 1986.
6. This is in brief the nature of these four revision petitions. And they all turn on the question whether the provisions of para. 24 of M.L.R. 115 regarding inalienability of part of certain holdings have been violated in these mutations (i,e, whether the vendors' holdings were reduced before the size of economic holdings).
7. The petitioners in these revision petitions are vendees from the two sisters namely Mst. Shamim Bibi and Naheed Ghulam Fatima. They purchased land from the sisters on various dates through registered deeds and in consequence the various mutations mentioned here were attested.
8. Mutation Nos.1568 and 1569 were entered but were rejected by the Revenue Officer by his order dated 5-3-1981. This lead to the starting beginning' of these litigations. The appeal of the vendees under these mutations was rejected by the Assistant Commissioner/Collector on 24-4-1983. The vendees went to the Additional Commissioner who by his order dated 13-2-1984, the single most important order in these petitions, declared that mutation Nos.1568 and 1569 were good in law as no provision of M.L.R. 115 regarding partial inalienability of holdings was violated when the sales relating to these two mutations took place, because the vendors, after these sales, were still left with holdings layer than the size of an economic holdings. Although the other eight mutations were not the subject matter of this litigation before the Collector or the Additional Commissioner, yet the Additional Commissioner by his order dated 13-2-1984 remanded them to the Revenue Officer for reconsideration keeping in view the provisions of M.L.R. 115 regarding partial alienability of certain types of holdings. And this opened the Pandora's box whereby these mutations were cancelled, and the matter was brought up by the aggrieved parties to the Assistant Commissioner/Collector and the Additional Commissioner, who gave their various decisions on them, as has been detailed above at the beginning of this order.
9. It will be noticed that all these cases relate to the law in M.L.R. 115 regarding the provisions relating to partial alienability of certain holdings and the effect of those provisions on the different sale transactions entered into by the petitioners as vendees with the two respondent sisters as vendors.
10. In my opinion, the sale transactions and the mutations based on them in the present petitions involve same basic points of law rather than points of facts.. To my mind, it is not necessary here to go imo the fact whether after a particular sale the vendor had been left with enough land to be safe from the provisions of M.L.R. 115 as regards inalienability. Quite different in fact entirely legal considerations must decide these cases. And those considerations are as follows.
(a) There can be only two interested parties against the petitioners/vendees in these cases viz the vendors/respondents and the State whose law was allegedly violated .When these inalienability provisions were infringed.
' As regards the interest of the vendors/respondents, they sold their lands either in good faith or otherwise, and received the sale price. Except, therefore, as good citizens acting selflessly only in furtherance of the law, they can have no other personal motive now to challenge these transactions of sale, as they have received the price they asked for.
(b) If these sales were violate of M.L.R. 115, the question arises whether the onus of carefulness in this regard would fall more on the vendors or on the vendees. It would be seen that the onus of being careful of the provisions of the law would fall much more on the vendors than on the vendees, because, on the one hand, the vendors are supposed to know the nature and size of their holdings better than the vendees, and on the other, it is the vendors who always have knowledge of prior sales made by them to other parties. Therefore, the vendors cannot normally be allowed to sell their land, whether bona fide or mala fide, and turn' round and claim that the sale was made in violation of the law. It is the vendees who may be allowed to have this right. And in the present case the vendees are satisfied with the sales. The vendors cannot both eat their cake and have it too.
(c) Now, the respondents/vendors cannot say that as a consequence of the sales their intents have in any way been harmed, as the sales were willingly entered into by them and they have already received the sale price. As has been pointed out above, it was moreover their own responsibility to be careful about the legality of the sales, rather than the vendees; ' However, as regards the law, there is a third interested party here, namely the State. It is true that the State always has an interest in the observance of its laws. In the present cases, it has to be seen whether the State also will have an interest in the implementation of the law which was violated by the sale transactions. It is true that in eases of normal amendments or repeals of a law, transactions past and closed before the date of the amendment or the repeal are decided generally in accordance with the law then prevailing. The amendment or repeal only means that with the passed of time the State (through its legislature) has changed its mind and would have a different law on the statute book from the previous one because social, economic or other circumstances have changed, or because of some other necessity, the law had to be altered. The law in the present cases regarding the inalienability of certain holdings was not struck down because of changed exigencies of society with the passage of time; it was struck down because in a sense the law was ab initio perverse, being violative of principles of Islam, which are changeless and eternally and absolutely good. In the Western jurisprudence, the law is never perverse (the King can do no wrong); but in our jurisprudence (the Islamic 'jurisprudence) a law can be perverse or even evil, and then the superior Courts have the authority to decline it as such. And this perversity is not relative to time and space. In other words, the State (the legislature) did not come to a new conclusion about the law in question here because it was confronted with new circumstances, but the State (the judiciary) realised that the earlier law was from the very beginning preverse being un-Islamic. The Islamic State, therefore, has a strong interest in having the law of Islam implemented in the land from as far back as practicable, having regard only to the rights and liabilities that may have accrued inter between individuals who had acted under the old law; and this would necessitate the protection of those rights and the enforcement of those liabilities. As has been made clear above, the petitioners and the respondents would not be harmed in any way, that is to say, they would not be affected at all if the new law, which is Islamic as against the old law which was un-Islamic, was implemented. In fact, the parties, particularly the vendors, acted at the time of these sales as if the unIslamic law was not in existence. The State also now has only one, interest, i,e,, that the law of Islam should be implemented. This discussion shows that all the parties, the State, the vendors, and the vendees would be happy if the transactions of sale went through in accordance with the law of Islam, in other words, as if the provisions of M.L.R.
115 relating to partial inalienability of certain holdings had never existed. To act otherwise would be to promote the observance of an un-Islamic law without benefit to any party and without having the effect of protecting the rights of any party.
(d) The doctrine of estoppel is also attracted here. It is true that there is no estoppel against the law, but in the present case the law against which there could be no estoppel has itself been declared un-Islamic, meaning thereby that it was always bad, and not merely amended or repealed under the pressure of social, economical or other circumstances. The vendors/respondents willingly sold their land at prices acceptable to them, and received those prices, and now they are debarred to take shelter behind a law which should never have been there on the statute book. The respondents/vendors are stopped from coercing the petitioners/vendees into an un-Islamic practice, when the respondents can urge no other personal motive for it, apart from greed or gain.
(e) When the Additional Commissioner passed his order dated 13-2-1984 he was only concerned with mutation Nos.1568 and 1569. He found those two mutations unassailable even under the old un-Islamic law. He. Was not at all concerned with the other transactions which resulted in the eight mutations that he arbitrarily threw open for reconsideration by his order. The parties to those mutations themselves had not agitated the matter before any Courts regarding them. No appeals had ever been decided concerning them by the Court of the Assistant Commissioner/Collector.
The Additional Commissioner, therefore, acted completely beyond his jurisdiction to remand those mutations for reconsideration by the Revenue Officer. The order of 13-2-1984 of the Additional Commissioner, as regards mutation Nos.1339, 1346, 1348, 1351, 1353, 1379, 1378 and 1570, was bad in law and must be set aside as never having existed. The entire super-Structure of decisions based on this order must also fall to the ground.
11. In view of the above Constitutional legal arguments, I would accept all our revision petitions. The result is that the provisions of M.L.R. 115 regarding partial inalienability of certain holdings would not apply to any sale transactions between the respondents/vendors and the petitioners/vendees, with the further consequence and direction that mutations must be sanctioned to give effect to all sales made between the parties which are the subject-matter of the present petitions.
Approved for reporting on the point that the declaration of the provisions of para. 24 of the M.L.R. 115 as un-Islamic will have retrospective effect, unless it can be shown by a party that not enforcing them would jeopardise his or her rights already accrued under the old law, or would result in some other disadvantage to him or her.