BOARD OF REVENUE Versus BASHIR AHMAD KHAN

ORDER

1. MUHAMMAD HALEEM, C.J.- -Three Review Petitions have been moved by the Board of Revenue against the judgment given by this Court on 10th of November, 1985 disposing of four matters.

2. Civil Review Petition No.4 of 1985 arises out of Civil Petition for Leave to Appeal No.1437 of 1980. Mr. Tanvir Ahmad Khan, the learned Additional Advocate-General, concedes that the ownership involved being less than 15 acres the judgment need not be reviewed because, both under the slab system as well as under the marginal system of adjustment following acquisition of land this category of land owners remains unaffected by the judgment.

3. It is with regard to Civil Review Petition No.5 and Civil Review Petition No.6 arising out of Civil Appeals Nos.86 of 1973 and 842 of 1984 respectively that a review is sought.

4. The learned Additional Advocate-General wants to get corrected the following observations made in the judgment governing both the appeals under consideration:

5. "As has been held earlier in Civil Appeal No.86 of 1973, the benefit of slab system as contained in clauses (iii) and (iv) of subsection (2) of `section 21 of the amended Act create a vested right in favour of the appellants of which they cannot be divested. Accordingly, the respondents while calculating it are bound to give effect to it for the same reasons as have been given in the earlier appeal." and further that:

6. "And as to the giving of legal effect to the Press Notes we agree with the High Court that the Press Notes could not be given any legal effect as they had no statutory force."

2. The ground on which these Review Petitions have been filed is that, as held in the judgment certain illegalities had taken place in acquiring the land under West Punjab Act XV of 1949, Punjab Act XX of 1955 was enforced in an effort to partly regularise what wash irregular and to place scheme of acquisition and return of a percentage of land on a permanent footing. While this amending Act was to come in force immediately after expiry of Thal Development Act (Amendment) Ordinance 1955, its sections 12 and 19 were "to come in force front such date as may be fixed by the Provincial Government by notification, provided that such date shall not be later than three months from the date on which this Act is first published in the Gazette" section 27 of this amending Act also provided that "anything done, scheme made, order passed sanction granted, notification issued shall, if inconsistent with the provisions of sections 21, 25, 30 and 36 of the said Act as amended by this Act be invalid to the extent of such inconsistency." During the period 1949 to the date of the enforcement of section 12 and section 19 only such acquisitions and return thereof were protected by the law as conformed to these provisions of the amending Act. This fact was recognised in our judgment in Civil Appeal No.123/72: Government of Punjab (formerly West Pakistan) v. Jiwan and six others connected appeals. Prior to the amending Act the marginal system of return was available, for land acquired while amending Act provided for return on the basis of slab system. If things had remained at that the judgment under review would no have called for interference. What happened subsequently was that Ordinance No.XV of 1971 was promulgated. It was an Ordinance to validate certain actions taken under the Thal Development Act 194 and section 2 thereof reads as hereunder;

7. "Validation of certain acquisitions, privileges liabilities and obligations.-- Notwithstanding anything to the contrary contained in the Thal Development Act, 1949, or Thal Development (Amendment) Act, 1955, (since repealed by the West Pakistan Repealing Ordinance, 1970) or in any decree, judgment or order of any Court or authority, or in any proceedings pending before any Court or authority, any land or right acquired by, privilege accrued to or liability or obligation incurred by the Thal Development Authority before the promulgation of the Thal Development (Amendment) Act, 1955, shall be deemed to have been validly acquired, accrued or incurred, as the case may be."

3. This Validating Act accomplished the validation of the marginal system, which had been invalidated by the Amendment Act of 1955. Therefore, all the acquisitions made and the rights and obligations incurred upto 20-7-1955 would be validated on the strength of this Ordinance.

8. Mr. S.M. A. Zaidi, the learned counsel for the respondents, contended that the revalidation was of acts, including rights and obligations and in view of the amending Act 1955 the rights and obligations had to be treated as under the amending Act which too recognized the acquisitions return on the slab system.

9. The argument advanced by the learned counsel for the respondents in fact negates the very purpose of the validation Act which actually had the effect of qualifying the sweeping effect of section 27 of the Amendment Act 1955. In the circumstances we allow the two Review Petitions and direct that the corrections be made in the judgment by deleting the portions reproduced on page 2 and by substituting them with the following:-

10. "The effect of validation Ordinance of 1971 was to provide effective legal protection and validity to the acquisition of land and the principle of return (marginal system) incorporate in the press notes appearing before 20-7-1955. For this reason the acquisition made and the marginal system of return became the governing law for the specified period."

4. As a consequence of this the following observation contained in our judgment with regard to relief shall also be substituted in the manner indicated thereafter:

11. "Accordingly, we would allow the appeal with costs, set aside the order- of the High Court to this extent and direct that writ shall issue to the respondents to give effect to the claim of the appellants" by

12. "Accordingly, we would dismiss the appeals with no order as to costs and maintain the judgment of the High Court dismissing the constitutional petitions."

13. The review petitions are allowed to the extent indicated with no order as to costs.

14. M.I./B-29/S.C. Petitions allowed.