2016 CLCN 107

PROVINCE OF PUNJAB through D.F.O. Forest Department Attock Versus The MEMBER, FEDERAL LAND COMMISSION ISLAMABAD

Citation2016 CLCN 107

CourtLahore High Court

Judge(s)Ijaz Ahmad and Malik Shehzad Ahmad Khan

IJAZ AHMAD, J.--- Respondents Nos. 2 to 14 are represented through Ch. Waris Khan, Advocate, whose name appears in the cause list. Neither the said respondents nor their learned counsel is present, today. Said respondents are ordered to be proceeded against ex parte.

2. The petitioner impugns the order dated 17.09.2001, passed by the Member, Federal Land Commission, Islamabad.

3. Land measuring 1737-acres 3-kanal and 16-marla, situated in Chak Fateh Khan, Tehsil Fateh Jang, District Attock, resumed from Sardar Mumtaz Hussain and other declarants was allotted to the Punjab Forest Department, by the Deputy Land Commissioner/ADC(C), Attock, vide order dated 31.05.1979. In exercise of the Suo Motu Revisional Powers, the Member, Federal Land Commission, vide order dated 07.05.1994, cancelled the allotment. Government of the Punjab filed Writ Petition No.700/1994. This Court, vide order dated 21.05.2001, remanded the case to the Federal Land Commission, Islamabad with a direction to decide it afresh after hearing all the concerned persons. The Senior Member, Federal Land Commission, Islamabad, in view of the Provisions of sections 15 and 17 of the Land Reforms Act, 1977, came to the conclusion that the land could not be allotted to the Forest Department without settlement of the claims of the tenants of the said land or other tenants or other persons. He, vide the impugned order, set aside the order dated 31.05.1979 and directed the Deputy Land Commissioner, Attock, to proceed for grant of the land to the tenants and the other deserving persons.

4. It is contended by learned counsel for the petitioner that the Suo Motu Revisional Powers could not be exercised after the 30th of November, 1976, as is provided under Paragraph-29 of the Land Reforms Regulation, 1972. It is further contended that under section 17(f) of the Land Reforms Act, 1977, a Provincial Government subject to approval of the Federal Government, notwithstanding anything contained under section 15, may utilize or dispose of a land, surrendered under section 9 for such purpose, as it may be fit, if it is an untenanted land. He refers to a copy of 'Register Haqdaran Zameen' for the year 1973-74 which shows the land in question to be a `ghair mumkin paharr' occupied by the owners. Such a land could be utilized for public purpose. He argues that an increase in the area under the forest is a need of the day and is a public purpose.

5. On the other hand, learned counsel appearing on behalf of the Federal Land Commission contends that the Land Reforms Act, 1977, was enacted on the 9th of January, 1977. Under section 30 of the Act, the provision of this Act, or any rule framed or order made thereunder shall have an effect notwithstanding anything to the contrary contained in any law for the time being in force. Under section 15 of the ibid Act, the land vested in the Government after its resumption shall be granted to the tenants of the said land or to other landless tenants or persons. It is only after the satisfaction of the claims of those tenants or the persons that utilization of the said land for the public purpose may be made under section 17 of the Act; that the land was resumed from private owners. The first right for grant of the said land also is that of the private persons who could be the tenants of that land, other tenants or other persons. Under section 22 of the Act, the Federal Government may delegate any of its powers or functions to a body or a person. Under section 27, the Federal Government may, at any time, call for a case decided by a Commission or any Authority empowered by a Commission and pass such an order, as it may deem necessary. Such powers having been delegated by the Federal Government to the Chairman, the Federal Land Commission and each of the Members of the Commission under the Notification No.II-1977/LR/2-78 dated the 23rd of September, 1978, issued by its Cabinet Secretariat (Cabinet Division), the impugned order has been passed under a lawful authority.

6. Heard. Record perused.

7. As far the first objection about the exercise of the Suo Motu Revisional Powers by the Federal Land Commission after 31.11.1976 is concerned, it is needless to say that at the time of allotment of the land in favour of Government of the Punjab, the Forest Department, vide order dated 31.05.1979, the Land Reforms Act of 1977, had already been enacted on the 9th of January, 1977. Thus, the allotment and cancellation in exercise of the Suo Motu Revisional Powers was governed under the Act, 1977. This Act sets the order of preference for utilization of the surrendered land. Under subsection (1) of section 15 of the ibid Act, such land is to be granted to the tenants who were in cultivation possession of the land during Kharif 1976 and Rabi 1975-76 crops. Under subsection (3) of section 15, the land which is not granted under subsections (1) and (2) shall be granted to other landless tenants or persons owning less than twelve acres. The claims of the tenants of that land, that of other tenants and other persons have to be satisfied first before considering the utilization of the land vested in the Government for some public purpose. The purpose of Martial Law Regulation 115 of 1972 was to improve the economic well-being of the peasantry, by making agriculture a profitable vocation. Land Reforms Act, 1977 further carries the purpose of the Regulation of 1972. The allotment of the land to the tenants of that land, other tenants and other persons will be in consonance of the Provision of Paragraph-18 of the Land Reforms Regulation, 1972 and section 15 of the Land Reforms Act, 1977. The land that can be put into public use has to be the land specified under Paragraph-19 of the Land Reform Regulation, 1972 or section 17 of the Land Reforms Act, 1977. The land in question is a private property. It does not fall within the above referred categories of the land. Its allotment in favour of the tenants or the eligible persons only, can serve the purpose of the Land Reforms Regulation, 1972 or Land Reforms Act. 1977. The Land Reforms Act, 1977 has an overriding effect on the other laws. Under sections 22 and 27 of the Land Reforms Act, 1977 read with the Notification dated 23.09.1978, referred above, the Federal Government may call for a case decided by a Commission or an Authority empowered by a Commission. This power may also be delegated under section 22 of the ibid Act and has so been delegated under the Notification dated 23.09.1978. Thus, the order dated 31.05.1979, could be revisited by the Federal Land Commission in exercise of the Suo Motu Revisional Powers. The impugned order dated 17.09.2001, passed by the Senior Member, Federal Land Commission, Islamabad, setting aside the order dated 31.05.1979, passed by the Deputy Land Commissioner, Attock, directing the said authority to proceed for grant of the land to the tenants and other deserving persons is in conformity with law. No interference in exercise of constitutional jurisdiction of this Court is warranted. This petition has no merit. It is hereby dismissed.

MH/P-1/L Petition dismissed.