Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Official Citation: 2001 PLD 92
Court / Jurisdiction: Peshawar High Court
Year of Decision: 2000
Decision Date: 2000-12-31
Parties: Syed MUZAMIL SHAH and 27 others vs DEPUTY LAND COMMISSIONER, JUDGMENT
This judicial decision was delivered by the Peshawar High Court on 2000-12-31. The matter involves proceedings between Syed MUZAMIL SHAH and 27 others and DEPUTY LAND COMMISSIONER, JUDGMENT, officially reported as 2001 PLD 92. 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 PLD 2001 Peshawar 92
Court Name: Peshawar High Court Judge(s): Nasir-ul-Mulk, Ijaz-ul-Hassan Khan Title:Syed MUZAMIL SHAH and 27 others vs DEPUTY LAND COMMISSIONER,
JUDGMENT
Reported As: PLD 2001 Peshawar 92 Result: Petition dismissed Judgment JUDGMENT NASIRUL MULK, J.---By this single judgment Writ Petitions Nos.299, 302, 303 of 1997, 467 of 1998 and 96 of 2000 are disposed of as common question of law is involved therein and it was on the basis of admission to full hearing of Writ Petition No,299 of 1997 that the remaining writ petitions were admitted. Writ Petition Nos.299, 302, 303 of 1997 and Writ Petition No,467 of 1998 have similar facts and common background whereas Writ Petition No,96 of 2000 filed by Nawabzada Salah-ud-Din has a different background. The common legal question in these writ petitions in the application of the principle laid down by the Shariat Appellate Bench of the Supreme Court in the case of Qazilbash Waqf v. Chief Land Commissioner PLD 1990 SC 99 and the Review Petition in Government of Pakistan v. Qazalbash Waqf 1993 SCMR 1697, whereby some provisions of Martial Law Regulation, 1972 (Martial Law Regulation 115) and Land Reforms Act, 1977 have been declared to be repugnant to the Injunctions of Islam. 2. The petitioners in Writ Petition Nos.299, 302, 303 of 1997 and 467 of 1998 (which for sake of convenience will be referred to as Kaghan Valley cases) are owners of land in the Kaghan Valley, District Mansehra. Their lands, or that of their predecessor-in-interest, became resumable under Martial Law Regulation 64 of 1959. The facts that follow are mainly taken from the judgment of the Senior Member Federal Land Commission, Islamabad, dated 18-2-1993, which are not disputed and it is this judgment of which the petitioners are essentially aggrieved of. A total of 65025 Acres was affected in the Kaghan Valley under M.L.R. 64 and compensation of Rs, 25,30,350 was determined to be payable to the declarants whose land was to be resumed. It may be stated that under M.L.R. 64 the owners were entitled to compensation for the land resumed under the Land Reforms.
---
## Page 2
Subsequently West Pakistan Land Commission reduced the P.I.U's. Value of Banjar Qadeem Land from 11 to 5 and that of Ghair Mumkin land from 5 to 1, with the result that the owners of Kaghan Valley were declared nonaffectees by order dated 5-7-1965. After promulgation of M.L.R. 115 in 1972 the Chairman Federal Land Commission re-opened the Kaghan Valley cases, set aside the order of 5-7-1965 and ordered that the P.I.U's. Value of 11 and 5 for Banjar Qadeem and Ghair Mumkin lands respectively be applied. As a result a number of owners of land in Kaghan Valley were affected by the Land Reforms. This order of the Chairman Federal Land Commission dated 19-9-1974 was set aside by this Court in Writ Petition No,238 of 1976 on 31-7-1978. However, on appeal by the Federal Land Commission the august Supreme Court on 21-4-1984 reversed the judgment of this Court and restored the order of the Chairman Federal Land Commission of 21-9-1974. During the implementation of the orders of theChairman Federal Land Commission in the light of the judgment of the Supreme Court some owners objected to the trading of Chiragah land as Banjar Qadeem instead of Ghair Mumkin. The Chairman Federal Land Commission after enquiry, by order dated 8-7-1990, declared that Chiragah land be treated as Ghair Mumkin. He further directed the Deputy Land Commissioner, Mansehra to obtain fresh declaration showing alienation between 1-3- 1967 and 20-12-1971 and 4-1-1977 and to pass a revise order on the basis that the Chiragah land was to be considered as Ghair Mumkin land. In pursuance to this order the Deputy Land Commissioner by order dated 20-11-1991 resumed land in excess of the ceiling under M.L.R. 64. The owners challenged this order before the Land Commissioner, Hazara on the ground that they were not provided an opportunity of hearing and that in view of the decision of the Shariat Appellate Bench of the Supreme Court in Qazalbash Waqf's v. Chief Land Commissioner declaring Land Reforms to be violative of the Injunctions of Islam the Deputy Land Commission had no authority to proceed with the Land Reforms. The Land Commissioner accepted the appeals on 13- 8-1992 on the principle laid down in Qazilbash Waqf's case and consequently set aside the order of the Deputy Land Commissioner, Mansehra dated 20-11-1991. This order was set aside by the Senior Member Federal Land Commission by the impugned order of 18-2-1993 in exercise of his suo motu powers after he received a report from the head of the Inspection Team of the Federal Land Commission. In pursuance to this decision the Deputy Land Commissioner, Mansehra directed the affectees to submit new forms and choices, which were submitted, but according to the petitioners, under protest. However, the orders of the Senior Member Federal Land Commission for some unknown reasons were not implemented until the present writ petitions Were filed in the years 1997 and 1998. 3. In the writ petitions of Kaghan Valley cases it was pleaded that since there was disagreement regarding the number of P.I.Us. Of the land to be surrendered and the classification of such land the cases were not finally concluded and, therefore, were still open and continuing and as such no further proceedings could be taken against the petitioners after 23-3-1990, from which date the principles laid down in Qazalbash Waqf's case came into force. The case of the petitioners, therefore, is that the Senior Member Federal Land Commission and the Deputy Land Commissioner, Mansehra had no authority to pass the impugned orders on 18-2-1993 and 20-11-1997 respectively. 4. In the Kaghan Valley cases it was only Writ Petition No,299 of 1997 which was properly documented by the petitioner and only in that case comments were filed by the respondents i,e, the Federal Land Commission and others. In the remaining connected writ petitions only the order of the Senior Member Federal Land Commission Islamabad dated 17-2-1993 wasim pugned and the petitions were admitted on the strength of Writ Petition No,299 of 1997. At the hearing of the writ petitions, it was hot stated by either of the counsel that the material facts of the other writ petitions are different. It also appears so because all these owners have jointly approached this Court in earlier petitions and also were before the Senior Member Federal Land Commission Islamabad when the impugned order was passed.
---
## Page 3
5. We now turn to the facts of Writ Petition No,96 of 2000 filed by Nawabzada Salah-ud-Din Saeed and others. The material facts are gathered from the writ petition, the various orders passed from time to time by the Authorities under the Land Reforms Statutes and previous judgments of this Court as well as the august Supreme Court when the same matter was twice brought before this Court and then the Supreme Court in different contexts. Nawabzada Muhammad Farid Khan, popularly known as the Nawab of Amb, owned huge landed property in the former State of Amb and the surrounding area, which now forms part of Hamra Division. After the promulgation of Martial Law Regulation 64 imposing Land Reforms the Nawab declared his total holding measuring 83506.896 Acres, out of which 81292.307 Acres was surrendered to the Government. Of this surrendered land the Forest Department of the Government of N.-W.F.P. Purchased 14823.448 Acres. ' This became the subject of litigation between the Forest Department and the successor-in- interest of the Nawab before this Court in Writ Petitions Nos.1523 to 1531 of 1991 and subsequently before the august Supreme Court in C.As. Nos.82 to 90 of 1995. These judgments would be referred to in some details later. The Nawab died in the year 1971. He was survived by his son Nawabzada Muhammad Saeed Khan, daughter Bibi Zaitoon and widow Mst. Rehmatun Nisah. 6. Before long Martial Law Regulation 115 was promulgated on 11-3-1972 imposing fresh Land Reforms. Nawabzada Muhammad Saeed Khan submitted his declaration under Martial Law Regulation 115. In this declaration he did not include an area measuring 2804 Acres transferred to WAPDA for construction of Tarbela Darn as he believed that the land had already been alienated and, therefore, would not form part of his holding. The exclusion of this land from the declaration forms was accepted by the Deputy Land Commissioner on 29-6-1972. The Land Commissioner Peshawar Division, however, did not agree with the recommendations of the Deputy Land Commissioner on the ground that the acquisition/alienation of the land in favour of WAPDA had not yet been finalised and thus, 2804 Acres was included in the holding of Nawabzada Muhammad Saeed Khan. He, however, held that Nawabzada shall surrender this land. This order of 10-8-1972 was upheld in appeal by the Chief Land Commissioner N.-W.F.P. Peshawar on 22-6-1973. The orders of 10-8-1972 and 22-6-1973 were challenged in Writ-Petition No,17 of 1985 in this Court by Shahzada Salahud-Din and others, the legal heirs of Nawabzada Muhammad Saeed Khan,who had by then passed away. The petition was allowed on 26-2-1989 and it was held, inter alia, that the Land Reforms Authorities could not order the declarant to surrender a particular piece of land and that if the declarant had erroneously not included 2804 Acres of land in his declaration he should be afforded a choice of retaining or surrendering this land. This judgment was assailed by some of the expectant beneficiaries from these reforms, before the Supreme Court of Pakistan in C.As. Nos.296 and 297 of 1990. Leave to appeal was granted but the appeal was eventually dismissed on 22-3- 1992. In this case too it is stressed that after coming into force the order made in Qazilbash Waqf's case the petitioners' land can no longer be assumed under the Land Reforms. 7. Since the main and common question in these petitions is the application of the judgment in Qazilbash Waqf's case it would be apt to refer to the relevant part of the order of the Court. In that case the petitioners had inter alia challenged the various provisions of the Land Reforms Regulation, 1972, Land Reforms Act, 1977 before the Federal Shariat Court essentially on the ground that under the Injunctions of Islam no limit can be placed by the State on personal holdings. The case eventually was decided by the Shariat Appellate Bench of the Supreme Court and in paragraph 2 of the order of the Court, by majority the following provisions, inter alia, were declared repugnant to the Injunctions of Islam:-- (i) Para. 2, clause (7) of the Land Reforms Reflation, 1972 in so far as it includes Islamic Waqf for the purposes of other paras. Of the Regulation which are being held wholly or partly repugnant to Injunctions of Islam.
---
## Page 4
(ii) The whole of paragraphs 7, 8, 9, 10, 13 and 14 and consequently paragraph 18 of the Land Reforms Regulation, 1972. (iii) Paragraphs 15, 16, 19 and 20 in so far as they ignore the rights and obligations, the terms and conditions of the grant licence or lease, as the case may be, in resuming the stud and livestock farms, Shikargahs and Orchards and dealing further with them under paragraphs 19 and 20 thereof. (iv)............... (v)............... (vi)............. (vii) The whole of sections 3, 4, 5, 6, 7(5), 8, 9, 10 and consequentially the whole of sections 11 to 17 of the Act. Paragraphs 6 and 7 of the order which are material for the purpose of the present writ petition reads as under:-- "(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 the self-executory provisions of the Land Reforms Regulation, 1972 and the Land Reforms Act, 1977 and the provisions 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." 8. Section 8 of Martial Law Regulation 115 and section 3 of the Land Reforms Act, 1977, which imposes limitation on individual holding have thus been declared to be repugnant to the Injunctions of Islam in Qazilbash Waqf's case and such provisions were ordered to cease to have effect from 23-3-1990. 9. In the light of the decision in Qazilbash Waqf's case Mr. Wasim Sajjad, Barrister, counsel for Nawabzada Salah-ud-Din Saeed and others, who led the arguments in these petitions, submitted that w,e,f, 23-3-1990 the provisions declared to be repugnant to the Injunctions of Islam could no longer be enforced and these provisions shall be treated as if they no longer exist in the statute books. The learned counsel drew a distinction between the affect of repeal of a statute and the consequences of a statutory provision declared by the Federal Shariat Court or Shariat Appellate Bench of the Supreme Court, to be repugnant to the Injunctions of Islam. It was contended that whereas repeal doesn't appeal pending proceedings declaration under Article 203-D(3)(b) of the Constitution provides that the law declared by the Federal Shariat Court, or for that matter the appellate Court, to be repugnant to the Injunctions of Islam shall cease to have effect on the day on which the decision on the Court takes effect. It was, therefore, contended that no effect can be given to the provisions declared to be repugnant to the Injunctions of Islam in Qazilbash Waqf's case after 23-3-1990. For the interpretation of the phrase "cease to have effect" reference was made to Sardar Ali v. Muhammad Ali PLD 1988 Supreme Court page 287 and Chief Land Commissioner v. Chief Administrator of Auqaf PLD 1988 SC 132. 10. Applying the decision in Qazilbash Waqf's case to the facts of his own case, the learned counsel submitted that the Deputy Land Commissioner, District Mansehra, had no authority left in him to direct the petitioner by his order of 28-3-2000 to furnish fresh declaration forms in respect of their entire holding under M.L.R. 115 of 1972 and Land Reforms Act, 1977 as by then the decision in Qazilbash Waqf's case had already taken effect. In this context the learned counsel pointed out that the land reforms proceedings against the petitioner had not come to a close and were still pending on 23-3-1990, the date on which the relevant provisions of the Land Reforms Laws had ceased to have effect. Referring to paragraphs 6 and 7 of the order of the Court in Qazilbash Waqf's case the learned counsel pointed out that only proceedings that had come to a close by the target date were uneffected by the 'decision. For the interpretation of paragraphs 6 and 7 of the order the
---
## Page 5
learned counsel referred to the case of Muhammad Jaffar Khan Leghari v. Balochistan Land Commission 1997 MLD 1934, judgment of the Balochistan High Court. 11. Elaborating his argument that the reforms proceedings against the petitioner were still pending and no decision therein made on 23-3-1990, learned counsel pointed out that apart from the declaration made by the predecessor-in-interest the petitioner, Nawabzada Muhammad Saeed Khan in the year 1972 no further declaration was made by the petitioner, neither any forms filled, nor choices made and no land was resumed. As regards the declaration by Nawabzada Muhammad Saeed Khan the learned counsel submitted that declaration also remained open as 2804 Acres of land, which was later submerged in Tarbela Dam, was not included in the declaration as the declarant believed that it did not form part of his holding. This question, it was argued, remains unresolved and, therefore, the declaration by Nawabzada Muhammad Saeed Khan had not become final and no determination made thereon. In this context the learned counsel also referred to the correspondence between different departments regarding the acquisition of 2804 Acres of land for the construction of Tarbela Dam as at the relevant time the Land Acquisition Act had not been extended to the former State of Amb. The learned counsel also raised some other points which shall be taken up later. 12. Responding to the above arguments Alhaj Sardar Bahadur Khan, the learned counsel representing the Land Commission, Mr. Muhammad Ayub Khan, A.A.-G. For the Provincial Government, Mr. Shaukat Ali Khan and Mr. Abdul Shakoor Khan, Advocates for the newly-impleaded respondents-tenants of the petitioners, submitted that decisive steps have been taken by the Land Reforms Authorities for the resumption of land of the petitioners. That declarations regarding the lands in question have been made way back in the year 1972 and the actual surrender of the land was delayed on account of the litigation initiated from time to time by the petitioner before the Authorities under the Land Reforms Laws and before the High Court. The learned counsel made reference to the judgment of the august Supreme Court in Government of N.-W.F.P. v. Federation of Pakistan (C.As. Nos.82 to 90 of 1995), regarding the lands owned by the petitioners and it was argued that the land from the petitioners stood resumed in the year 1960. It was further submitted that by the impugned orders the petitioners were directed to file fresh choices. Thus, only implementation of the order by the Land Reforms Authorities was pending on 23-3-1990. 13. The effect of the decision in Qazilbash Waqf's case on proceedings pending before the Land Reforms Authorities on the date on which the decision became effective came under discussion in quite a few cases before the High Courts and the august Supreme Court. One reported judgment of the august Supreme Court is the case of Chief Land Commissioner, Punjab v. Chief Administrator of Auqaf, Punjab PLD 1998 Supreme Court 132, which was referred to on behalf of the petitioners. In that case one of the questions before the Court was as to whether certain Waqf lands under the management of the Chief Administrator of Auqaf Punjab could be resumed under the Land Reform' Laws after 23-3-1990, the date on which the decision in Qazilbash Waqf's case came into effect. It was held that since the Chief Administrator of Auqaf had neither submitted any declaration nor any steps taken by the Federal Government or the Land Reforms Authorities required the Waqf to file declaration, or any determination made by the Authorities on the failure of the owner to make declaration, by the target date, fresh action could not be initiated by the Land Reforms Authorities against the Waqf. The Court observed that some "steps were required to be taken either by the owners or by the Land Reforms Authorities before the excess land, if any, could vest in the Government". A reference was made to the judgment of the Hon'ble Mr.Justice Muhammad Afzal Zullah in Qazilbash Waqf's case that if decisive steps were taken before the target date the Land Reforms proceedings would not be affected by the decision in Qazilbash Waqf's case. The Court also made a reference to the decision by the Hon'ble Supreme Court in the unreported judgment in Muhammad Tahir Shah v. Federal Land Commission (C.A. No,292 of 1994) in which reliance was
---
## Page 6
placed upon the observations of the Hon'ble Mr.Justice Muhammad Afzal Zullah and the Hon'ble Mr.Justice Shafi-ur-Rehman in Qazilbash Waqf's case. These observations are reproduced as they have been relied upon consistently by the Supreme Court as well as by the High Court in construing the effect of the decision in Qazilbash Waqf's case on pending proceedings. Mr. Justice Muhammad Afzal Zullah observed as follows:-- "However, I am of the view that the decision of this Court shall not affect those cases in which any decisive step has been or is now taken in the ordinary normal course at any stage of the proceedings, in implementation of the provisions which would cease to have effect as a result of the Court order, prior to the date to be fixed therein." ' The observations of Mr.Justice Shafi-ur-Rehman are as follows:-- "As most of the provisions found repugnant to Islam happen to be self-executory, they have of their own force taken effect,accomplished the object of the legislation leaving the mere implementation of it, to be completed on the strength of machinery provisions. Such self-executory provisions will remain unaffected by this decision. However, those provisions which have a prospective effect also and are not self-executory, shall get annulled from the date the decision declaring them repugnant to the Injunctions of Islam takes effect." 14. In another case of Chief Administrator of Auqaf v. Federal Land Commission PLD 1994 Lahore 50 the Lahore High Court, repelling the argument of the petitioner that the petitioner had not exercised his choice regarding surrender of excess land arid, therefore, the property did not vest in the Federal Government, the Court held that the vesting of the property in the Government did not depend upon the exercise of choice by the, petitioner as under section 9(2) of the Land Reforms Act, 1997 the declaration by the Deputy Land Commissioner that the petitioner was in possession of excess land the excess vested in the Government. It was, therefore, held that the Qazilbash Waqf's case did not affect the implementation of this declaration under the "self-executor provisions' of the Land Reforms Act. Yet in another case the Lahore High Court in Azra Parveen v. Additional Deputy Commissioner 2000 CLC 654 the Court, relying upon the afore stated observations of the two Hon'ble Judges of the Supreme Court in Qazilbash Waqf's case, held that notice in terms of section 7(5) of the Land Reforms Act by the Deputy Land Commissioner calling upon the petitioner as to why her holding may not be determined and the excess land resumed, "were decisive steps" taken by the Land Reforms Authorities which were not, therefore, effected by the decision in Qazilbash Waqf's case. 15. The under lying principle of the aforementioned authorities appears to be that if decisive steps were taken in proceedings under the Land Reforms Laws before 23-3-1990, when the decision in Qazilbash Waqf's case became effective, such proceedings would continue and taken to the logical conclusion and remain uneffected by the said decision. Such decisive steps might be filing of declaration forms by the declarants or when no such declaration is made, determination by the Authorities under the Land Reforms Laws that a person's holding is in excess of the limits prescribed by the Land Reforms Laws, or order of resumption of excess land made by the Authorities. It is, therefore, now to be seen as to whether or not decisive steps were taken in the cases before us. 16. The lands of the Nawab of Amb, Nawabzada Muhammad Farid Khan, were subjected to the West Pakistan Land Reforms Regulation (Regulation 64 of 1959) and an Area of 81202.307 acres was surrendered, out of which 14823.44 Acres was sold to the Forest Department as is stated in the judgment of the august Supreme Court in Government of N.-W.F.P. v. Federation of Pakistan (C.As Nos.82 to 90 of 1995), filed against the judgment of the Peshawar High Court, dismissing the writ petition of the Forest Department, filed against the order of the Deputy Land Commissioner, dated 21-5-1991 whereby the successors-in-interest of the Nawab of Amb (the present petitioners) were allowed to make fresh choice including the land provisionally transferred.To the Forest Department. The Hon'ble Supreme Court set aside the order of the Deputy Land Commissioner of 21-5-1991 and
---
## Page 7
held that the land transferred to the Forest Department could not be made the subject-matter of a fresh choice as the orders of the Deputy Land Commissioner passed on 6-10-1960, whereby the said land was resumed was not provisional and thus, the heirs of the Nawab were not entitled to make fresh choices. This judgment was delivered by the august Supreme Court on 24-10-1997. The land declared by the Nawab of Amb had thus been finally resumed, the validity of which has been upheld by the august Supreme Court. 17. To recapitulate the facts, after the death of Nawab of Amb in the year 1971, his son Nawabzada Muhammad Saeed Khan filed his declaration in the year 1972 under Martial Law Regulation 115. This declaration was accepted by the Deputy Land Commissioner on 29-6-1972. Since in this declaration the Nawabzada Muhammad Saeed Khan had not included 2804 Acres of land acquired by WAPDA for the construction of Tarbela Dam the Land Commissioner Peshawar Division did not agree with the acceptance of the declaration by the Deputy Land Commissioner and ordered that this land shall be surrendered by the. Nawabzada. As stated in paragraph 6 of the present judgment this controversy was taken right upto the Supreme Court of Pakistan where it was held on 22-3-1992, in C.As. Nos.296 and 297 of 1990, that the Nawabzada cannot be compelled to surrender this particular land and he was entitled to make his choice of land to be…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.