Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: MUHAMMAD SARDAR KHAN and 3 others VS Respondent: FEDERAL LAND COMMISSION JUDGMENT
Court Name: Lahore High Court Judge(s): Mian Hamid Farooq, Chaudhry Ijaz Ahmed Title:MUHAMMAD SARDAR KHAN and 3 others vs FEDERAL LAND COMMISSION
JUDGMENT
Reported As: 2004 YLR 1689 Result: Petitions dismissed Judgment JUDGMENT ' CH. IJAZ AHMAD, J.--We intend to decide the following writ petitions by one consolidated judgment having similar facts and law and inter dependent upon each other. (1) Writ Petition No.598 of 1990. (2) Writ Petition No.2984 of 1999. (3) Writ Petition No.2985 of 1999. 2. Brief facts out of which Writ Petition No.598 of 1990 arises are that petitioners Nos.1 and 2, namely Muhammad Sardar Khan and Muhammad Akram Khan, are the original owners of the land in question, who allegedly had transferred the land measuring 1469 Kanals, 12 Marlas in village Ismail Pur Ratika vide Mutation No.105 dated 29-8-1970 to their sister namely Farah Iqbal, respondent No.28. Similarly, petitioners Nos.1 and 2 had gifted agricultural land, measuring 4636 Kanals in village Ahmad Pur Mcleod Gang, vide Gift Mutation No.147 dated 28-11-1970 to their brothers Ghulam Mehar Ali and Muhammad Usman Khan, petitioners Nos.3 and 4. Petitioners Nos.1 and 2 submitted a declaration form before DLC concerned, who accepted the same and excluded the land mentioned in the above mentioned gift-deeds. The order of the Deputy Land Commissioners was reversed by the Land Commissioner vide order dated 9-6-1973, wherein aforesaid gifts were declared to be void. The petitioners being aggrieved, filed the revision petition before the Federal Land Commission, who dismissed the same vide order dated 17-2-1980. The petitioners, being aggrieved filed the following writ petitions before the Lahore High Court. (1)Writ Petition No.4486 of 1981. (2)Writ Petition No.4487 of 1981.
---
## Page 2
(3)Writ Petition No.5113-A of 1981 before the Bahawalpur Bench of this Court, which was re- numbered at principal seat as Writ Petition No.373 of 1981. ' The aforesaid writ petitions were accepted by the Division Bench of this Court vide consolidated judgment dated 2-4-2001. During the pendency of the aforesaid Constitutional petitions, the Land Reforms Act No.II of 1977 came into force. Petitioners submitted their declaration form before the Deputy Land Commissioners concerned, who allowed the petitioners to retain 8000 P.I. Units each and resumed the remaining excessive land vide order dated 8-8-1977 in village Kakuani and in Ahmad Pur Gateka. Resumed land was allotted to the respondents by the Deputy Land Commissioners vide orders dated 11-4-1979, 31-12-1979 and 3-4-1980, respectively. Land Commissioner, Bahawalpur exercising suo motu powers, under the Land Reforms Act, set aside the aforesaid orders vide order dated 14-8-1985 on the ground that the cases pertaining to the land of the declarants involved in the aforesaid mutations in the above mentioned villages are under litigation. The respondents/tenants, being aggrieved filed revision petition before the Chief Land Commissioner, who accepted the same vide order dated 6-10-1986. Petitioners Nos.1 and 2 filed an application before the Chief Land Commissioner to set aside the ex parte order on 24-3-1987, which is pending adjudication. The Chief Land Commissioner, during the pendency of the application of the petitioners for setting aside the ex parte order of the Chief Land Commissioner, has sent reference on 29-10-1987 to the Federal Land Commission on the ground that the cases with respect to the land have not yet been decided by the authorities qua the aforesaid gifts and the land has only been provisionally resumed, therefore, it could be allotted to the tenants or not. The Chairman Federal Land Commission rejected the reference and confirmed the ex parte order dated 6-10-1986 vide order dated 1-3-1990, hence the present Writ Petition No.598 of 1990 for setting aside the aforesaid orders dated 6-10-1986 and 1-3-1990 of the Chief Land Commissioner and the Chairman Federal Land Commission. 3. Brief Facts, out of which the Writ Petitions Nos.2984 of 1999 (Muhammad Akram Khan petitioner) and Writ Petition No.2985 of 1999 (Muhammad Sardar Khan petitioner) arise are that the petitioners are declarants under Land Reforms Oct, 1977 and their holding was determined by the Land Commissioner under the provisions of Martial Law Regulations 115 of 1972 vide order dated 9-1-1973. The petitioners had alienated parcel of land to their brothers and sisters by way of gifts. Gifts were declared void by the Authorities under the Land Commission up to the Chairman of Federal Land Commission. The petitioners also submitted their declaration form under Land Reforms Act No.II of 1977. The Revenue Field Staff erroneously did not show their land being affected by water logging and consequently productivity of the land was considerably low. According to the record maintained by WAPDA Scarp in 1962-63 water logging and salinity was about 85% and in the year 1976-77, it was 82%, therefore, the petitioners are entitled for the concession/reduction in the calculations of the Produce Index Units to the extent of 60%. Punjab Land Commission also issued Notification to this effect dated 4-2-1974, according to which PIUs of the land effected by "Sem" and "Thore" were reduced and the declarants were allowed the said concession in PIUs for determining of their holdings for the purpose of Land Reforms. Petitioners submitted 3 applications before the respondent on the basis of the aforesaid Notification. Deputy Land Commissioner, in March, 1984 sent a reference to the Director, Salinity Monitoring Directorate S. M.O. Canal Bank Mughalpura, Lahore requesting him to provide the information, position and percentage of "Sem" and "Thore" from 1963-64 and 1975 to 78 of the land owned by the petitioner in the following villages. (1) Ahmad Pur Gang. (2) Kakuani. (3) Ismail Pur Ratika. (4) Ahmad Pur Gatika. (5) Wazira.
---
## Page 3
' Reports from the Revenue Staff were also called for ascertaining the correct position. The Revenue Staff submitted report to the Deputy Land Commissioner, which reveals that 40% to 80% land in question was uncultivated during "Kharif" 1969 to "Rabi" 1970. WAPDA Scarp also submitted report vide letter dated 22-4-1989, which reveals that most of the area in the aforesaid villages remained under water logging in the years 1968, 1973 and 1975 to 78 and also most of the areas of Mouza Wazirka was flood affected throughout the years. The report furthq reveals that 80% of the area owned by the petitioners/declarants was affected-by water logging and salinity. The respondents, m spite of the clear reports did not allow the concession of reduction of holding by redetermination and the Deputy Land Commissioner, despite the fact that he had accepted the reports of the aforesaid authorities, but did not give benefits of the same vide order dated 2-7-1989 and the application was dismissed merely on the ground that the same was flied at belated stage. The petitioners being aggrieved filed appeals before the Land Commissioner, Bahawalpur, who treated the same as revision and dismissed the same vide consolidated order dated 3-8-1994. Petitioners, being aggrieved filed the revision petition before the Chief Land Commissioner, who dismissed the same vide order dated 27-4-1995. The petitioners, being aggrieved filed revision petition before the Chairman, Federal Land Commission, who dismissed the same vide order dated 1-6-1999, hence the present writ petitions. 4. The learned counsel for the petitioners submits that the Division Bench of this Court has decided the question of law between the same parties vide judgment dated 2-4-2001 passed in Writ Petition No.373 of 1981, therefore, this Division Bench has to follow the order of the Division Bench or refer the matter to the Honourable Chief Justice for constituting Full Bench. In support of his contentions, he relied upon the following judgments;-- (1) The Province of East Pakistan v. Dr. Aziz-ul Islam PLD 1963 SC 296. (2) The Province of East Pakistan and others v. Sirajul Haq Patwari and others PLD 1966 SC 854. (3) Messrs Habibi Insurance Co. Ltd. v. Pakistan National Shipping Corporation 1999 CLC 1727. (4) Multiline Associates v. Ardeshir Cowasjee and others 1995 SCMR 362. ' He further submits that the matter was not finally decided and the land of the petitioners was not finally determined by the Land Reforms Authorities and the respondents have no lawful authority to allot the Land in question to the respondents in view of the law laid down by the Honourable Supreme Court of Pakistan in a case reported as Qazalbash Waqf's case PLD 1990 SC 99. He further submits that the Land Reforms Authorities erred in law not to give benefit of notification dated 14- 2-1974 as the iand of the petitioner was affected by "Sem" and "Thore", therefore, it was the duty and obligation of the respondent authorities to allow the petitioners the concession at the time of calculation of the Produce Index Units of the land in question of the petitioner for the purpose of determining of their holding for the purpose of land reforms. 5. He further submits that petitioners submitted three applications before the Deputy Land Commissioner on 24-5-1973, 12-1-5-1975 and 2-7-1988. . First two applications were not decided by the D.L.C. And resumed the land of the petitioners provisionally without any notice to the petitioners. Third application was dismissed on the ground that the same was filed at belated stage. Orders of D.L.C. Up to the level of Chief Land Commissioner were set aside by the Chairman Federal Land Commission as the petitioners filed revision petitions before the said authority vide order dated 20- 10-1996 and directed the D.L.C. To implement order dated 20-10-1996 and restored the land after giving 60% concession of produce index units on account of "sem and thore" affected land of the petitioners/declarants. After that land in excess of prescribed limit fixed under M.L.R. 115 and Land Reforms Act, if any, be resumed, if there is no other legal hitch. The order of the Chairman Federal Land Commission was implemented' by the D.L.C. Vide order dated 28-10-1996 according to which no excess land was left behind with the petitioners after providing concession of 60% on the basis of "sem and thore". D.L.C. Intimated Chairman Federal Land Commission qua implementation of the
---
## Page 4
order dated 20-10-1996 vide letter dated 5-11-1996. Possession of the land in question was also taken by the petitioners by process of law and the mutation was also sanctioned in favour' of the petitioners on the basis of order of Chief Land Commissioner dated 20-10-1996 and 28-10-1996. He further submits that respondents being aggrieved filed Writ Petition No.4059 of 1996 and Writ Petition No.4060 of 1996 which were accepted and the cases were remanded to the Chairman, Federal Land Commission with the direction to decide the same afresh after providing proper hearing to all the concerned. The Chief Land Commissioner set aside the order dated 20-10-1996 vide impugned order dated 1-6-1999 without adverting to the order of D.L.C. Dated 28-10-1996 as the order dated 20-10-1996 was implemented by him through the said order. He further submits that Chairman Federal Land Commission erred in law to accept the revision petition of the respondents and reversed the earlier order without giving due effect to the Notification dated 14-2- 1974 merely on the ground that The Notification is relatable to Faisalabad district, whereas the said Notification was issued by the Punjab Land Commission on the reference of the Land Commissioner Sargodha Division. A copy of the same was endorsed to all the Land Commissioners and D.L.Cs except Land Commissioner, Sargodha. Therefore, said Notification is applicable in case of the petitioners. He further submits that impugned order' is in violation of Para.2(10) of M.L.R. 115 of 1972 as the D.L.C. Resumed the land of the petitioners without ascertaining the comparative productivity of the land of the petitioners which is statutory duty of D.L.C. To ascertain actual and physical position and classification of the land of the petitioners. He further .Submits that para.2(10) of the aforesaid Regulation is paramateria to section 9(3) of Land Reforms Act, 1977. He further urges that impugned order is in violation of the law laid down by the superior Courts. In support of his contention he relied upon Federal Land Commission and another v. Inayatullah and others 1978 SCMR 281 and Federal Land Commission v. Said Rehmat Shah 1984 SCMR 669. He further urges that the petitioners had filed two applications before the D.L.C. For redetermination of their units on 24- 5-1973 and 19-5-1975 but the D.L.C. Did not decide the same till date as is evident from para.10 of the order dated 20-10-1996 and para.10 of the order dated 1-6-1999. He further submits that third application filed by the petitioners on 2-7-1988 was entertained by the D.L.C. And called for the report from concerned department which was dismissed merely on the ground that the same was filed at a belated stage which orders were finally set aside by the Chairman, Federal Land Commission vide order dated 20-10-1996 and this fact was also mentioned in the impugned order dated 1-6-1999. The Chairman, Federal Land Commission erred in law to reverse its order , dated 20-10-1996 without adverting to the reports of the concerned departments which are attached with the writ petition as Annexure-D which clearly reveals that major portion of the land of the petitioners fell in the category of "sem and thore". He further submits that land of the petitioners is under litigation, therefore, respondents have no lawful authority to allot the same to the tenants till the land of the petitioners has been finally resumed under the law in view of section 9(3) of Land Reforms Act, 1977 read with para.18 of M.L.R. 115 of 1972. In support of his contention he relied upon Muhammad Hayat Ullah Khan v. Federal Land Commission PLD 1977 Lahore 166. He further submits that tenants have no right to agitate the matter before any authority on the well known principle of locus standi till the land has been finally resumed from the name of the petitioners under the law by the Land Reforms Authorities. In support of his contention he relied upon Muhammad Khan and others v. Khawar Naheed and others 1987 MLD 414. He further urges that petitioners have not given any choice qua surrendered land therefore, no final resumption order has been passed against the petitioners. In support of his contention he relied upon Mahmoona and others v. Ham Din and others PLD 1984 Lahore 228. He further urges that impugned order is not in accordance with section 4 of the Land Reforms Act. He further submits that principle of past and closed transaction is not attracted as no final resumption order of the land of the petitioner has been passed in view of mandatory provisions of Land Reforms Laws and principle laid down by the superior Courts.
---
## Page 5
Therefore, principle laid down by the Honourable Supreme Court in Qazalbash's case is attracted in all respects. Therefore, action of the respondents is without lawful authority. In support of his contention he relied upon the following judgments:-- ' Qazalbash Waqf and others v. Chief Land Commissioner PLD 1990 SC 99.. ' Sardar Ali and others v. Muhammad Ali and others PLD 1988 SC 287. ' Sharifan Bibi v. Federation of Pakistan 2002 YLR 3320. ' He further submits that principle of past and closed transaction is not attracted in the present case as held by this Court in the following judgments on account of the distinguishing features of this case as no final order of resumption has been passed by the Authorities against the petitioners:-- ' Mst. Ulfat Jan v. Deputy Land Commissioner 2001 YLR 1539. ' Iqbal Hussain Qureshi v. Federal Land Commission 2002 YLR 1669. ' Chief Administrator Auqaf v. Federal Land Commission PLD 1994 Lahore 50. ' He summed up his arguments that impugned orders are without lawful authority and are liable to be set aside. 6. Mr. Zahid Hamid, Advocate for the private respondents submits that following writ petitions were filed by the parties qua the land in question:-- ' Writ Petition No.373 of 1981 Writ Petition No.4486 of 1981 Writ Petition No.4487 of 1981 Writ Petition No.598 of 1990 Writ Petition No.599 of 1990 Writ Petition No.2984 of 1999 Writ Petition No.2985 of 1999 Some of the aforesaid writ petitions were filed by the parties at Lahore High Court, Bahawalpur Bench. The petitioners submitted applications before the Honourable Chief Justice for transferring the aforesaid writ petitions at principal seat on the ground that there was no Deputy Attorney General appointed by the competent authority to defend the cases on behalf of Federation of Pakistan at Lahore High Court, Bahawalpur Bench. The said application was accepted by the Honourable Chief Justice. The aforesaid writ petitions were fixed before the Division Bench on 2-4- 2001. Writ Petitions Nos.373 of 1981, 4486 of 1981 and 4487 of 1981 were accepted by the Division Bench vide judgment dated 2-4-2001. The remaining writ petitions mentioned above were dismissed for non-prosecution vide orders dated 2-4-2001 respectively. The petitioner in Writ Petition No.599 of 1990 has not filed any application for restoration of the writ petition'till date. The petitioners in the remaining writ petitions (Writ Petition No.598 of 1990, Writ Petition No.2894 of 1999 and Writ Petition No.2895 of 1999) filed applications for restoration which were accepted vide order dated 16-4-2002 as the learned counsel of the respondents had no objection for restoration of the main writ petition subject to certain conditions. Original declarants Muhammad Sardar Khan and Muhammad Akram Khan have gifted lands to petitioners Ghulam Mehr Ali and Muhammad Usman Khan through Mutation No.147. They also gifted some land to their sister through Mutation No.105. The gift mutations were declared void by the Land Commissioner vide order dated 14-6-1972. The aggrieved parties filed appeal/revision petition before the Chief Land Commissioner who remanded the case to the Land Commissioner. Subsequently, Land Commissioner declared Gift Mutation No.145 in favour of brothers of the original declarants void and Mutation No.105 qua sister was declared partially void. The aggrieved party again approached the Chief Land Commissioner who remanded the- case to the Land Commissioner. The Land Commissioner declared Gift Mutation No.147 as wholly void whereas he declared Gift Mutation No.105 qua sister partially void. The petitioners being aggrieved filed appeal before the Additional Chief Land Commissioner who dismissed the same vide order dated 20-2-1975 and held both the Gift Mutations Nos.147 and 105 void. The petitioners being aggrieved filed petition before the Senior Member Federal Land Commission who dismissed the same vide order dated 17-2-1980. The petitioners being aggrieved filed Writ Petitions No.373 of 1981, Writ Petition No.4486 of 1981 and Writ Petition No.4487 of 1981, which were accepted by, the Division Bench vide judgment dated 2-4-2001. He further submits that
---
## Page 6
competent authority under the provisions of M.L.R. 115 of 1972 resumed the land of the original declarants namely Muhammad Sardar Khan and Muhammad Akram Khan vide provisional resumption orders dated 15-5-1973 and 30-4-1975. The original declarants owned land measuring 542 acres, 4 Kanals equivalent to 15853 produce index units in Villages, Ahmadpur, Mcleod Ganj, Wazira Gaddoka, Ismail Rateka, Ahmadpur Gaddoka as determined by the Land Reforms Authorities on 20-12-1971 vide order dated 9-1-1973 and excess land was resumed vide order dated 9-1-1973 measuring 85 Acres, 4 Kanals and 1 Marla equivalent to 1853 produce index units under M.L.R 115 of 1972 which is subject matter of Writ Petition No.598 of 1990. He further submits that land measuring 85 acres, 4 Kanals and 1 Marla equivalent to 1853 produce index units was allotted to the tenants after resumption who are not party in these Constitutional petitions. This area was not under litigation. 7. He further urges that the petitioners/declarants owned land measuring 456 Acres, 7 Kanals, 17 Marlas equivalent to 12912 PIUs after deducting the gifted land by the petitioners to their brothers vide Mutation No.147 measuring 289 Acres 6 Kanals. And land measuring 91 Acres, 6 Kanals, 16 Marlas vide Mutation No.105 to their sister on 4-1-1977, which was resumed by the Land Reforms Authorities under the provisions of Land Reforms Act, 1977 vide order dated 8-8-1977 and finally the land of the petitioners was resumed by the Land Reforms Authorities under the Land Reforms Act, 1977 vide order dated 15-1-1978 equivalent to 3501 PIUs. Learned counsel of private respondents submits that area of 1853 PIUs was resumed free from all encumbrances from the petitioners Muhammad Sardar Khan and Muhammad Akram Khan as is evident from order dated 9-1-1973 passed by the D.L.C. Bahawalnager. He further submits that excess land from the petitioners was also resumed by D.L.C. Bahawalnagar vide order dated 8-8-1977 as is evident from Annexure-E attached with the writ petition which is to the following effect:-- "Khasrawise details of . The area alongwith the permanent installation structures and building thereon, if any, surrendered by the declarant Mohammad Sardar Khan son of Sardar Muhammad Iqbal Khan caste Chadhuka Resident of Ahmadpur Mcleod Ganj Tehsil Munchinabad District Bahawalnagar under the Land Reforms Act, 1977." ' He further urges that said note was also repeated by the D.L.C. In his order dated 15-1-1978. He further urges that the land in question in Mauza Kakuani was resumed from the petitioners which was not under litigation before any authority at the time of resumption which was allotted to the respondents by the competent authority vide orders dated 11-4-1979, 31-12-1979 and 3-4-1980 respectively. The Land Commissioner set aside the order of allotment in favour of the respondents on the application of the petitioners vide order dated 4-8-1985. The respondents being aggrieved filed appeal/revision before the Chief Land Commissioner who accepted the same vide order dated 6-10-1986. The petitioners submitted an application before the Chief Land Commissioner for setting aside order dated 6-10-1986. The Chief Land Commissioner Punjab sent a reference to the Chairman Federal Land Commission that land of the petitioners was provisionally resumed and therefore, said land could not be allotted to the respondents. The Chairman Federal Land Commission dismissed the reference and upheld the order of the Chief Land Commissioner dated 6-10-1986 vide order dated 1-3-1990. The petitioners being aggrieved filed Writ Petition No.598 of 1990 before this Court. Learned counsel of the respondents submits that land in question which was allotted to the respondents was not under litigation therefore, principle of past and closed transaction is attracted in this case in all force and principle laid down by the Honourable Supreme Court in Qazalbashi's case PLD 1990 SC 99 is not attracted. The judgment of the Division Bench of this Court in the connected writ petitions is not applicable in the present case in view of the distinguished facts of the present case. He further submits that land of the original declarants with respect to the gifts executed by the original declarants in favour of their brothers and sister vide Mutations Nos.147 and 105 are under litigation whereas the land which was resumed by the Land
---
## Page 7
Reforms Authorities under the provisions of Land Reforms Act is not under litigation and the impugned orders are in accordance with para.31 of MLR-115 of 1972. He further submits that petitioners filed an application before the Chief Land Commissioner for setting aside allotment letters issued by the competent authorities in favour of the respondents after 15 years. He further submits that notification dated 9-6-1972 attached with the writ petition as Annexure-D is not applicable in case of the petitioners. He further submits that case of the petitioners does not fall within the parameters prescribed under Notification dated 9-6-1972 which is attached with the writ petition as Annexure-D. He further urges that subsequent notification was also issued on 11-5-1973 and the case does not improve the status of the petitioners. He further urges that competent authority also issued notification dated 14-1-1974 according to which the instructions on the other hand are that unless a legal stay order is issued, the work of allotment of land the title of which is not in dispute should not be stopped under any circumstances. Therefore, action of the authorities below is in accordance with law in terms of the subsequent notifications as no stay order was granted by any authority in favour of…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.