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Official Citation: 1980 NLR 100
Court / Jurisdiction: Balochistan High Court
Year of Decision: 1996
Decision Date: 1996-12-31
Parties: Sardar MUHAMMAD JAFFAR KHAN LEGHARI And Others vs BALOCHISTAN JUDGMENT
This judicial decision was delivered by the Balochistan High Court on 1996-12-31. The matter involves proceedings between Sardar MUHAMMAD JAFFAR KHAN LEGHARI And Others and BALOCHISTAN JUDGMENT, officially reported as 1980 NLR 100. The court reviewed applicable Pakistani statutes, procedural requirements, and governing case-law authorities. The full text below contains the complete facts, arguments, and legal reasoning rendered by the honorable bench.
Case cited as NLR 1980 Peshawar 100
Court Name: Balochistan High Court Judge(s): Javaid Iqbal, Amir-ul-Mulk Mengal Title:Sardar MUHAMMAD JAFFAR KHAN LEGHARI And Others vs BALOCHISTAN
JUDGMENT
Reported As: 1997 MLD 1934 Result: Petition accepted Judgment JUDGMENT AMIR-UL-MULK MENGAL, J. ---By this petition filed under Art. 199 of the Constitution of Islamic Republic of Pakistan, 1973 (hereinafter referred to as the Constitution) the petitioners have challenged impugned orders passed by respondent No.6 i.e. Land Commissioner, Multan Division and all other proceedings and actions taken by respondents against the petitioners and their predecessors-in-interest under M.L.R. 115 in respect of their lands in Tehsil and District Barkhan. Pre-admission notice was given to the respondents on 13-6-1995. Learned Advocate-General, Baluchistan appeared on 27-6-1995 and informed that he would be making appearance on behalf of Chief Land Commissioner, Punjab. On the said date representative of Chief Land Commissioner, Punjab Mr. Abdul Waheed was also present. The matter was admitted for regular hearing and comments were filed by Baluchistan Land Commission, Quetta through its Secretary, Chief Land Commissioner, Baluchistan and Board of Revenue, Baluchistan, Deputy Land Commissioner, Barkhan also filed his comments. Remaining official respondents did not file any comments. The petitioner's counsel filed a rejoinder .To the comments and ultimately the matter was fixed for regular hearing. Brief facts for filing of the Constitutional petition, if put succinctly, are that the petitioners were Aala-Maliks as well as. Adna Maliks of the lands situated in Tehsil and District Barkhan (previously Loralai District of Baluchistan) in their own names and in the names of their predecessors-in--- interest. When M.L.R. 115 of 1972, known as the Land Reforms Regulation, 1972 was promulgated, Land Commissioner, Multan Division at Multan passed orders of resumption of lands under M. L. R. 115, the detail whereof is as under:---
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S.No.Name Area resumed in Acres and PI Units. Acres P. I. Units 1. Sardar Muhammad Jaffar Khan Leghari.670.612 4602 2.Sardar Muhammad Umer Khan Leghari.670.612 4602 3.Sardar Muhammad Tariq Khan Leghari.670.612 4602 4.Sardar Muhammad Jamil Khan Leghari.670.612 4602 5.Begum Iris Fatima Leghari 670.612 4602 6.Begum Affifa Mamdot 3852.382 26323.68 7. Begum Asmat Jan 1292.23 8943.87 8.Sardar Farooq Ahmed Khan Leghari 13961.91 95855.102 9.Mst. Sohelia Begum 1509.35 12421.56 10.Mst. Farida Begum 1509.35 12421.56 11.Mst. Najma Begum 1509.35 12421.56 12.Sardar Mansoor Ahmed Khan Leghari1701.90 12168.92 13.Sardar Maqsood Ahmed Khan Leghari1310.86 8883.47 14.Sardar Sultan Masood Khan Leghari 879.47 6204.62 It is worth to point out here that since petitioners owned and possessed lands both in the Province of Punjab and in the Province of Baluchistan and that they are permanent residents of Dera Ghazi Khan, the Province of Punjab, therefore, they filed declarations there and respondent No.6 proceeded under M.L.R. 115 of 1972 and passed orders from time to time for the resumption of the said lands. It is further revealed from the record that late Sardar Atta Muhammad Khan. Leghari predecessor-in-interest of the petitioners Nos. 1 to 5 owned in his name land measuring 5066.65 acres equal to 32109.55 P.I.U. Out of which land measuring 5038.192 acres situated in Barkhan was resumed by orders dated 23-7-1974 passed by the Deputy Land Commissioner, D.G. Khan. Similarly late Sardar Muhammad Khan Leghari predecessor- in-interest of petitioners Nos. 8 to 11 also owned land and late Sardar Mehmood Ahmed Khan Leghari predecessor-in-interest of petitioners numbers 12 to 14 owned land in Tehsil and District Barkhan in their own names which have devolved on the petitioners respectively as legal heirs under the Muhammadan Law. The Deputy Land Commissioner, D.G. Khan respondent No.6 passed orders from time to time for the resumption of the lands of the petitioners and their predecessor-in-interest situated in Tehsil and District Barkhan. These orders were passed between the years 1972 and 1989. It is pertinent to point out that the petitioners and their predecessors-in---interest claimed to be treated as full owners and Adna Maliks of lands in District Barkhan on the basis of the proprietary rights which they have been enjoying from times immemorial. It appears from the record that as far back as in 1927 the predecessors-in-interest of the petitioners entered into an agreement with the then British Government of Baluchistan whereby they agreed to hand over the possession of a portion of their lands known as Bairun-e-Burjiyat' to the Government of British Baluchistan as Adna Maliks but retained their proprietary rights as Ala-Maliks, subject to the consideration as follows:--- (i) Four hundred tnaunds of wheat shall be paid annually to us, our heirs, reversioners and assignees, in perpetuity as a compensatory Jagii from the revenues of the Barkhan Tehsil in return for the inferior proprietorship rights hereby surrendered in respect of the 12000 acres of land referred to above. In view, however, of the special circumstances underlying this assignment of land revenue and the fact, that we Sardars are not residents of Baluchistan, no service shall be required of us as a conditions of the grant.
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(ii) In the Berun-e-Barjiyat tracts, land revenue at the rate of one-fifth of the gross produce shall be assessed and collected entirely by official agencies. We shall, however, have the option of being represented at the time that crops are appraised. (iii) Out of the land revenue thus collected under the second paragraph above, we the Leghari Sardars shall receive from Government, in recognition and consideration of our proportion of proprietorship rights (Ala Milkyat), a fixed proportion of one-third share, either in cash or kind, according to our option. We agree promptly to take delivery of this share at the threshing floors or in such other manner as we may arrange with the consent of the District Officer. We shall have no right to demand more than this share or to interfere in any way with the revenue collections or with the cultivators concerned. The opinion in regard to the taking of revenue in cash or kind shall equally apply in the event at any future date, of a cash assessment of land revenue being fixed in this tract as a result of settlement operations' or otherwise. (iv) We shall retain all such Lambardari rights on the lands in question as we have possessed in the past, and subject to the approval of the Political Agent, Loralai, we may nominate Sarbarahs from such of the respectable tenants as occupy the lands in question to act on our behalf. The number of such Sarbarah Lambardars will be fixed by the Political Agent, Loralai. (v) Only occupancy tenants and those who are recognised as inferior proprietors shall be permitted to transfer their rights and then only inter se always provided that we the Leghari Sardars shall maintain our superior right of pre-emption. (vi) The political Agent, Loralai, will assist us the Leghari Sardars in the collection of any outstanding advances now in the hands of tenants or ex-tenants resident in Baluchistan, in regard to which we are able by customary law or assent to establish a claim. (vii) This agreement to come into full force from the Rabi Harvest of 1928, but we Sardars will be given one hundred maunds of wheat as Jagir for the Kharif Harvest of 1927, plus our one-third share of such produce as may be raised according to the terms of the third paragraph above." Before dilating upon the Constitutional points raised, it is thought expedient to mention here that an amendment was made in the Land Reforms Regulation, 1972 (MLR 115) by an Act known as Land Reforms Amendment Act, 1976 (Act No.XLVIII/1976). We shall reproduce para. 13(3) as amended in a relevant para. Of the judgment. However, the amendment was made, according to petitioners' counsel, only in respect of lands belonging to Leghari declarants, of District Barkhan, at the instance of Chief Land Commissioner, Baluchistan. All actions taken by Land Reforms Authorities in respect of lands situated in District Barkhan, were made ineffective by this amendment, it was argued. With this background the petitioners have invoked Constitutional jurisdiction of this Court seeking a declaration as mentioned in the preceding paras. We heard M/s. Khawaja Ahmed Tariq Rahim and Mr. Faqir Muhammad Khokhar for petitioners assisted by Mr. Muhammad Abbas Mirza, Advocate. Ch. Ejaz Yousaf learned Additional Advocate- General, Baluchistan on behalf of official respondents. Deputy Land Commissioners, Dera Ghazi Khan through his representative Muhammad Masood Khalid on behalf of Commissioner, Multan and representatives of respondents Nos.5 and 6. At the very out set we enquired from the petitioners counsel how this Court has territorial jurisdiction into the matter as the impugned orders had been passed by Deputy Land Commissioner, Dera Ghazi Khan within the jurisdiction of Lahore High Court. This was an Office Objection, in reply whereof the petitioners' counsel admitted that the subject-matter pertains to lands situated in Barkhan which is a District in the Province of Baluchistan. It was further contended that proposed action of resumption of lands shall have to be taken by the Deputy Land Commissioner, Barkhan, therefore, the cause of action has accrued within the jurisdiction of this Court.
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Another limb of argument was that the orders passed or action taken by Deputy Land Commissioner, Dera Ghazi Khan or Land Reforms Officers have, in fact been nullified by Amending Act of 1976 and subsequent action was initiated by Chief Land Commissioner, Baluchistan, therefore, it is the Baluchistan High Court which shall have territorial jurisdiction into the matter. We heard learned Additional Advocate-General, Baluchistan, who did not controvert this legal proposition and wanted to argue the petition on merits. There is no cavil that the lands, subject-matter of the petition, are situated in District Barkhan, Province of Baluchistan and after Amending Act of 1976 fresh action had been initiated by CLC Baluchistan, therefore, this Court has jurisdiction to decide the lis, which otherwise involves intricate legal questions. Moreover, Additional Advocate- General, Baluchistan did not challenge jurisdiction of this Court, on this count. The question of territorial jurisdiction is answered accordingly. Another important legal aspect was of laches, which though not specially raised before us, but which was otherwise pertinent, It was in such special circumstances as regards the lands in question that the Chief Land Commissioner, Baluchistan initiated proceedings by issuing an order in 1976 that these lands would be covered under the Amending Act of 1976 calling for action in accordance with the provisions of said Act. The learned counsel therefore, argued that cases pertaining to these lands were deemed to be pending and there is no likelihood or slightest apprehension that orders of this Court as regards lands in dispute having got a special nature being covered by Amended Law of 1976 shall have any bearing elsewhere on the past and closed transactions under M.L.R. 115 or orders made or action taken thereunder. A fortiori it looked as if the petition is .Hit by laches, but considering the arguments of the petitioners' counsel it becomes clear that after the amendment made in para. 13(3) of Land Reforms Regulation in 1976 and till the said law lost its efficacy in 1993 after dismissals of review petition filed by Government of Pakistan, there was no substantial change or alteration in the nature of lands in dispute, nor any action was taken in pursuance of orders passed by either Deputy Land Commissioner, Dera Ghazi Khan or Commissioner, Multan. From perusal of Record of Rights, it becomes crystal clear that entries therein remained intact with no change or alteration whatsoever either in favour of the Government or Land Commission of Pakistan. Thus, from 1976 when amendment was made in para. 13(3) till 1993 when finally review petition of Government of Pakistan was dismissed by the Supreme Court of Pakistan, the respondents failed to take action under Amended Law as regards petitioners' lands, thus their cases remained pending. It has been consistently held by the superior Courts that laches is not delay's simpliciter but it involves important principles for non-suiting the petitioners and these are: (i) acquiescence on the petitioner's part and (ii) that any change of position that has occurred on the defendants' part as held in 1982 SCMR 913. As stated hereinabove in the case in hand no action whatsoever has been taken by the Land Reforms Tribunals after Amending Act of 1976, therefore, the delay has not bestowed upon Government any right whatsoever the self---executing provision of the Act apart. In this view of the matter we are fortified by 1984 SCMR 940. Had entries in the Record of Rights been changed in pursuance of amendment in para. 13(3) or any overt act done in favour of the Government in consequence of orders passed or the Government had gained any benefit, then, of course question of laches would have been very important, but from perusal of record it appears that no change whatsoever has been made in favour of the Government nor any action, beneficial to the respondent Government, has been taken, therefore, the case of the petitioners is not hit by laches on mere ground that the matter could not be finalised by Land Reforms Authorities during a period of about 18 years. Reliance if any may be placed on NLR 1980 Peshawar 100 and 1980 CLC (Karachi) 974.
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Moreover, after when the Amending Act of 1976 came into force by dint of which excess lands were declared not to vest in the Government but after adjudication shall revert to the Adna Maliks, the same remained pending. Thus, it was a continuing wrong, as such the cause of action arose continuously and' objection as to laches in the circumstances cannot be held valid. This view is supported by PLD 1970 Lahore 569. Lastly neither respondents nor Additional Advocate-General raised any objection the maintainability of the petition on the ground of laches. We are, therefore, of the considered view that petition cannot be dismissed on the ground of laches. We had made a passing-bye reference in the preceding paras. About amendment in para. 13(3) of Land Reforms Regulation and now we proceed to determine the effect of such amendment, particularly with regard to cases already cited under the Land Reforms Regulation, in respect of lands falling in para. 13(3) of the Regulation. There appears to be a ring of truth in the arguments of petitioners' counsel that amendment in para. 13(3) of the Regulation has been initiated mainly for lands in dispute as is evident from the order of the CLC, Baluchistan. In fact this amendment was recommended by Office of CLC, Baluchistan. Para.2 of Annexure ' C' read as under:--- "This matter was referred to the Federal Land Commission and on the recommendations of this Office, paragraph 13(3) of the Land Reforms Regulation, 1972 has been amended through the Land Reforms Amendment Ordinance, 1976, issued by the President of Pakistan and published in the Extraordinary Gazette of Pakistan of May 19, 1976.: The President of Pakistan was pleased to substitute sub-para. (3) of para. 13 by Land Reforms Amendment Act of 1976, which reads as under:--- "Where any person is in possession of, or is holding, land in excess of the area permissible for retention under Part III, so much of such excess land as is in his possession as a lease or mortgagee or is held by him as the landlord of an occupancy tenant or a Muqarraridar or as an Ala Malik shall not vest in Government but shall, subject to the other provisions of this Regulation, revert to the lessor, mortgagor, occupancy tenant, Muqarraridar or Adna Malik, as the case may be, and shall be deemed to have so reverted at the commencement of this Regulation. " From perusal of this amendment it appears that the Legislature thought it expedient to exclude only such lands as mentioned in para. 13(3) (and no other) from operation of para. 18 by which excess lands would vest absolutely in the Government under Part III read with para. 18 of Land Reforms Regulation, free from any encumbrances or charge and without payment of any compensation. It was further laid down that, subject to other provisions, such lands revert to the lessor, mortgagor, occupancy tenant, Muqarraridar or Adna Maliks as the case may be and shall be deemed to have so reverted at the commencement of this Regulation. It is thus clear that the main object of the amendment of 1976 was to take out certain lands, as mentioned in para. 13(3) of Land Reforms Regulation from operation of general provisions of Land Reforms Regulation and if a notional surrender thereof had been made by the declarants in favour of Pakistan Land Commission or the Government, the same has been nullified by the amendment. Furthermore, the effect of this amendment has been given retrospectively, i.e. From the date of commencement of this Regulation. In other words, all actions taken by Land Reforms Authorities, be that of a Deputy Land Commissioner or a Land Commissioner as regards resumptions of lands covered under para. 13(3) in favour of the Government have dissipated with retrospective effect by Legislature itself. Thus, obviously the action taken by DLC, Dera Ghazi Khan, the Land Commissioner, Multan or Federal Land Commission in respect of lands in Barkhan District have been nullified by this amendment. This view is further supported by Memorandum of Chief Land Commissioner, Baluchistan (Annexure B) para. 2 of which reads as under:---
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"The effect of this amended sub-paragraph is that the Leghari Declarants of Barkhan Tehsil of Loralai District have surrendered lands in which they had Aala Malkiyat rights, that land shall not be ordered to be resumed for grant under the provisions of para. 18 of M.L.R. 115. Such excess lands shall revert to Adna Malik of that land." It is also apparent from perusal of the letter that out of 19 cases of Leghari declarants, 13 had been decided, whereas remaining 6 cases were sub judice. It was, therefore, directed that such orders of resumption shall have to be amended to the extent that the excess lands of these declarants in which they had Aala Malkiyat rights shall vest in the Adna Maliks concerned. In para. 4 it was observed that those orders will have to be revised by the Land Commissioner, Multan Division. Consequently the Deputy Land Commissioner, Loralai District was ordered to supply detail information of all lands of these 13 persons to Land Commissioner, Multan Division for further action in accordance with law. Hence, it is clear that the object of amendment in para. 13(3) was to exclude such lands from application of Part III and to deal with it in a special manner as provided by the amended clause. We, therefore, unhesitatingly concur with the arguments of petitioners' counsel that all actions taken by Deputy Land Commissioner, Dera Ghazi Khan or of the .Hierarchy under Land Reforms as regards resumption of these lands under Part III were nullified by this amendment and fresh proceedings were ordered to be initiated by Chief Land Commissioner, Baluchistan. Thus, the first point that since resumption of lands prior to amendment have been set at naught by Legislature introducing substitution in para. 13(3) of Land Reforms Regulation, 1972 is settled in affirmative. The impugned orders passed by Deputy Land Commissioner, Dera Ghazi Khan or of the hierarchy as a whole prior to the Amendment Act, 1976 have been set aside not by Courts but by Legislature itself. Resultantly the cases were ordered to be re-adjudicated in the light of the amendment and thus the same did not remain past and closed transaction. It is thus settled that in all those cases, falling under para. 13(3) of the Regulation, if the Government had taken further action by reverting such excess lands to the Adna Maliks, occupancy tenants, mortgagees etc. By subsequent independent proceedings and the records had been accordingly changed in pursuance of such orders or actions, taken in accordance with provisions of para.13(3), before 23-3-1990, such actions have attained finality and are fait accompli. But in those cases, where no further action had been taken by the Government, as in the case in hand, the matters remained sub judice and pending. We now proceed to attend to the most important question raised before us viz. The effect of the judgment of Supreme Court of Pakistan whereby it declared certain paras. Of the Regulation (including para. 13) as void being repugnant to Injunctions of Islam (PLD 1990 SC 99), and to determine the fate of lands in dispute in the slight of judgment of Honourable Supreme Court of Pakistan. For determination of this question it would be expedient to reproduce the order of the Court which reads as under:--- 1 ........................................ 2. In accordance with the opinion of the majority of the Judges separately recorded, it is held that the following provisions of the Regulation the Act and the Punjab Tenancy Act, 1887 to the extent indicated against each, are repugnant to the Injunctions of Islam. (i) .......................... (ii) The whole of paragraphs 7,8,9,10,13 and 14 and consequentially paragraph 18 of the Regulation. (iii) ........................ (iv) ........................ (v) ........................ (vi) ........................ (vii) ........................
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(viii) ........................ (3) ........................ (4) ........................ (5) ........................ (6) This decision shall take effect on 23rd March, 1990 whereupon the provisions declared repugnant to the Injunctions of Islam will cease to have effect. (7) The operation of self-executory provisions of the Law Reforms Regulation, 1972 and the Law Reforms Act, 1977 and the ancillary thereto shall not in any manner be affected by this decision till the aforesaid provisions cease to have effect, i.e. On 23-3-1990." The matter can be approached from two angles; firstly that the entire para. 13 has been declared void- and it has further been held that decision of the Court shall take effect on 23-3-1990 and secondly, that there appears to be a saving clause as regards operation of self-executory provisions of the Law Reforms Regulation, 1972 and the Law Reforms Act, 1977 which shall not, in any manner, be affected by the decision till the aforesaid provisions cease to have effect, i.e. On 23-3- 1990. "SELF-EXECUTING CONSTITUTIONAL PROVISIONS: Term has reference to provisions which are immediately effective without the necessity of ancillary legislation. Constitutional provision is 'self-executing:'1if it supplies sufficient rule by which right given may be enjoyed or duty imposed enforced; Constitutional provision is not 'self-executing' when it merely indicates principles without laying down rules giving them force of law." Similarly the self-executing provision has been defined in Ballantine's Law h Dictionary as under: "SELF-EXECUTING PROVISIONS: A provision of a Constitution which is effective without legislation, no action by the Legislature being required to put it in operation. 16 Am J2d Const L94. A Constitutional provision may be said to be self-executing when it takes immediate effect and ancillary legislation is not necessary to the enjoyment of the duty imposed. In short, if a Constitutional provision if complete in itself, it executes itself. Lanigan v. Callup, 17 NM 627, 131 p 627." From bare perusal of aforementioned definitions it becomes clear that a provision may be said to be self-executing when it takes immediate effect and ancillary legislation is not necessary to the enjoyment of the right. Adjudging the provisions of para. 13(3) on the aforementioned touchstone, it can be safely held that it has got 2 parts and the first part is self-executory whereas the second part is not self-executory, because the first part lays down, after describing the nature of possessing/ownership as occupancy tenant, lessee or mortgagor, Muqarraridar as Aala Maliks that excess land shall not vest in the Government and the second part suggests that such (excess lands) shall, subject to other provisions of this regulation, revert to the lessor, mortgagor, occupancy tenant, Muqarridar or Adna Malik as the case may be ---------It is thus clear that for the 0second part determination by way of ancillary legislation or rules is required because there might arise a case as the case in hand, as to who is Adna Malik or a mortgagor or a lessor or an occupancy tenant, if different parties contest. Furthermore, again a situation can be…
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