SHAH JEHAN KHAN ABBASI vs DEPUTY LAND COMMISSIONER, BAHAWALPUR
The petitioner sought leave to appeal against the judgment of the Lahore High Court dismissing his writ petition, which challenged the resumption of his land under the Land Reforms Regulation, 1972. The core legal question was whether the resumption proceedings had attained finality prior to 23-3-1990, the date from which paragraph 13 of the Land Reforms Regulation, 1972 was declared repugnant to the Injunctions of Islam in the landmark Qazalbash Waqf case. The Supreme Court of Pakistan held that the resumption proceedings had indeed been completed long before 23-3-1990, specifically noting that the resumption was finalized through an order dated 6-4-1981 and a mutation attested on 19-4-1981, and that ongoing litigation did not negate the vesting of excess land in the Government under section 9 of the Land Reforms Act, 1977. The key principle laid down is that the Islamic repugnancy declaration regarding land resumption provisions applies prospectively from 23-3-1990, and positive resumption actions completed prior to that date remain legally unaffected and valid.
- Whether the declaration of repugnancy of paragraph 13 of the Land Reforms Regulation, 1972 to the Injunctions of Islam applies retrospectively or prospectively?
- Does ongoing litigation regarding excess land negate or counter the vesting of such property in the Government under section 9 of the Land Reforms Act, 1977?
- Are resumption proceedings completed prior to 23-3-1990 affected by the judgment in the Qazalbash Waqf case?
- Paragraph 13, Land Reforms Regulation 1972
- Section 9, Land Reforms Act 1977
' SARDAR MUHAMMAD RAZA KHAN, J.--- Shah Jehan Khan Abbasi son of Haji Muhammad Khan Abbasi, resident of Mohallah Maroof Khan, Bahawalpur, calling into question the judgment, dated 26-10-2000 of a learned Division Bench of Lahore High Court, Lahore dismissing his writ petition, seeks leave to appeal there against.
2. Shah Jehan Khan Abbasi being owner of a considerable land was a declarant under the Land Reforms Regulation, 1972. The Deputy Land Commissioner, Bahawalpur determined his holding at 23696 Produce Index Units (PIUs), vide order, dated 24-5-1972. After when a litigation concerning gift in favor of his mother Mst. Zubaida got finally concluded before this Court on 10-7-1988, the owner was summoned by the Deputy Land Commissioner to give his choice of land which he proposed to surrender. The petitioner did not appear. An area measuring 339 acres, 4 Kanals and 16 Marlas equivalent to 6696 PIUs was directed to be taken over. The writ petition was filed challenging the resumption of land which, through the impugned order, was dismissed and hence this petition.
3. One and the only ground taken by the petitioner was to the effect that no material action having been taken by the Land Reforms Authorities and no land having been so resumed under para.13 of the Land Reforms Regulation before 23-3-1990 and aforesaid para. Having been declared repugnant to the Injunction of Islam in Qazalbash Waqf v. Chief Land Commissioner, Punjab Lahore PLD 1990 SC 99, the authorities cannot now resort to any resumption under the Land Reforms Regulation due to the proceedings having became coram non judice.
4. Reliance before us was placed on Nasir Ahmad Khan v. Mst. Ismat Jehan Begum 1968 SCM R 667, Muhammad Faraz v. Abdul Rashid Khan 1984 SCM R 724, Chief Land Commissioner, Punjab v. Chief Administrator of Auqaf, Punjab PLD 1998 SC 132-149 and Chief Administrator of Auqaf, Punjab v. The Federal Land Commission PLD 1994 Lah.
50. The crux of the aforesaid rulings is that repugnancy to the Injunctions of Islam, of para.13 of Land Reforms Regulation is prospective with effect from 23-3-1990. Any positive action towards resumption by the Land Reforms Authorities taken and completed prior to 23-3-1990 shall not be affected by the declaration given by this Court in Qazalbash Waqf case (supra). The law on the point is even otherwise not disputed. What now we have to decide is simply a question of fact as to whether, in the instant case, the Land Reforms Authorities had or had not completed the resumption proceedings prior to 23-3-1990.
5. The declaration given by the petitioner is at pages 4 to 6 of the concise statement filed by the respondent. It dates back to 1972. This matter also went before the Land Commissioner who rejected appeal of the petitioner on 7-5-1972. The Deputy Land Commissioner in his order, dated 6- 4-1981 observed that the petitioner was present before him and that he accepted the surrender of area marked out by the Assistant Land Commissioner. On such acceptance, the resumption was finalized through order, dated 6-4-1981 and a mutation to that effect was also attested as 1059 on 19-4-1981. An area equivalent to 4393 PIUs was not only resumed but also allotted to 32 tenants. If any dispute or litigation exists or existed thereabout, it would not be material in view of the provision of section 9 of Land Reforms Act, 1977. According to it, any such land under litigation and in excess of the entitlement of a person shall vest in the Government subject to the final adjudication of the rights of the litigants.
6. Meaning thereby, that the factum of litigation itself would not negate or counter the vesting of the property in the Government. It is thus, proved on record that in the instant case the material proceedings qua resumption had already been taken much prior to the date (23-3-1990) given by this Court in Qazalbash Waqf case (supra).
7. Finding no force in the instant petition, it is hereby dismissed and leave to appeal refused.
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