Muhammad Sardar Khan Versus Federal Land Commission of Pakistan

Ahmad Nadeem Arshad, J .--- Through this single judgment we intend to decide the above titled Constitutional Petition as well as the Constitutional Petitions bearing Writ Petition No.4486 of 1981 and Writ Petition No.4487 of 1981, as having similar questions of facts and law are involved in all the petitions.

2. The petitioners in all the petitions have challenged the following orders:

1. The orders dated 30.09.1972/07.10.1972 passed by the Land Commissioner (Respondent No. 3), whereby Mutation No. 147, dated 28.11.1970, was declared void, and Mutation No. 105, dated 29.08.1970, was declared partially void and partially valid.

2. The order dated 09.06.1973 passed by the Land Commissioner (Respondent No.3), through which the appeals of petitioners Nos. 1 and 2 were dismissed with some modifications.

3. The order dated 20.02.1975 passed by the Additional Chief Land Commissioner (Respondent No. 2), which dismissed the appeals of petitioners Nos.1 and 2, declaring Mutations Nos.105 and 147 as entirely void.

4. The order dated 17.02.1980 passed by the Federal Land Commission (Respondent No. 1), dismissing the revision petitions of Petitioners Nos. 1 and 2.

3. Relevant facts forming background of the proceedings in hand are that petitioners Nos. 1 and 2, Muhammad Sardar Khan and Muhammad Akram Khan, are the declarants under Martial Law Regulation 115 (MRL-115). They transferred a total land measuring 4636 kanals in equal shares (2318 kanals + 2318 kanals ) to their brothers, Ghulam Mahar Ali Khan and Muhammad Usman Khan (Petitioners Nos. 3 and 4), sons of Sardar Muhammad Iqbal Khan, through oral gift via Mutation No. 147, dated 28.11.1970. They also gifted land measuring 1469 kanals 12 marlas to their sister, Farrah Iqbal (Petitioner No. 5), through oral gift via Mutation No. 105, dated 29.08.1970. The petitioners submitted their declaration forms excluding the gifted land. Following this, the Deputy Land Commissioner, based on the submitted forms, issued two separate orders dated 09.01.1973, resuming an excess area of 1853 Produce Index Units from Petitioners Nos.1 and 1853 Produce Index Units from Petitioner No.2 (Land in excess of the ceiling 14000 PIUs under Para No.8 of MLR-115). The Land Commissioner (Respondent No. 3) vide order dated 14.06.1972 declared Mutations Nos. 105 and 147 void. However, the matter was remanded for a fresh decision. After the remand, the Land Commissioner, exercising the power of review, declared that Oral Gift Mutation No. 147, dated 28.11.1970, executed by Petitioners Nos. 1 and 2 in favor of their brothers (Petitioners Nos. 3 and 4), did not attract the provisions of either Exception I or II of the 2nd Proviso to Paragraph 7 (I)(b) of the Land Reforms (Punjab Amendment) Ordinance No. XV of 1972, and consequently, declared it void. Regarding Mutation No.105, executed by petitioners Nos.1 and 2 in favour of their sister (Petitioner No.5) on 29.08.1970, the Land Commissioner held it to be valid for 85 kanals 05 marlas , but void for the excess land of 649 kanals and 11 marlas , which was over and above her entitlement. Petitioners Nos.1 and 2 challenged this order by filing separate appeals before the Land Commissioner. In his order dated 09.06.1973, the Land Commissioner upheld the order declaring Oral Gift Mutation No. 147 as void but modified the decision regarding said Mutation No. 105. He declared the mutation valid for 155 kanals 01 marla and void for the excess land of 579 kanals 15 marlas . Dissatisfied with this, petitioners Nos. 1 and 2 filed separate appeals (R.O.A. No. 428 of 1972-73 and R.O.A. No. 437 of 1972-73) before the Chief Land Commissioner. The Additional Chief Land Commissioner (Respondent No. 2), by order dated 20.02.1975, declared both mutations (No. 105 and No. 147) void in their entirety. With regard to Mutation No. 105, the order included the following observations:

Admittedly in this case the father of the donor and donee is alive. In his life-time there cannot be any question for her to receive any inheritance and therefore when she received this gift of land she had not been deprived of her due share of inheritance. This transaction of gift was thus in clear violation of the provisions of Para 7 of MLR 115. This transaction is void in its entirely. The order of the Land Commissioner declaring it as partially void and partially valid is not in accordance with the provision of MLR 115, is set-aside.

That with regard to mutation No.147 declared as under:-

In mutation No.147 the two appellants-declarants gifted land to their younger brothers. In this connection it was argued that the father after gifting his land to his two sons who are appellants in these case had no land left with him to give to his remaining sons and therefore, it was to compensate them that the two appellants gifted land to their younger brothers. This transaction however, involved gift from the two brothers to the two brothers in the life time of their father. Neither the Provision of MLR 115 nor of the Notification issued in this connection permits such gift of land. The Notification permits gift from a brother to a brother only in case the donee brother had been deprived of his due share of inheritance. In the present case the father of the donor and donee being alive, the question of any deprivation of due share of inheritance does not arise. I, therefore, see no merits in the two appeals with regard to mutation No.147 against the order of the Land Commissioner which are dismissed.

In the light of said order dated 20.02.1975 of the Additional Chief Land Commissioner, the Deputy Land Commissioner passed two separate orders of even date i.e. 30.04.1975 with regard to further resumption of the land of petitioner Nos.1 and 2 as under:-

1. Petitioner No.1 namely Muhammad Sardar Khan.

Case of the declarant was decided by my predecessor vide his order dated 9.7.73 whereunder an area of 302 Acres and 2 kanals equal to 12189 PIUs was resumed provisionally as he was in appeal before the Addl: Chief Land Commissioner, Lahore, in connection with mutations Nos.105 and 147.

The Addl. Chief Land Commissioner, Lahore, vide his order dated 20.2.75 has held mutations Nos.105 and 147 as void in their entirety.

Consequently an area of 370 Acres, 7 kanals and 16 marlas equal to 12524 PIUs being in excess of the ceiling is hereby provisionally resumed free from all encumbrance, as he has filed an appeal before the Member, Federal Land Commission, Islamabad.

He is directed to furnish the choice about the area to be surrendered within 3 days positively failing which suo moto selection of the area shall be made.

II. Petitioner No.2 namely Muhammad Akram Khan.

Case of the declarant was decided by my predecessor vide his order dated 9.7.1973 whereunder an area of 289 Acres and 6 kanals equal to 9157 PIUs was resumed provisionally as he was in appeal before the Addl: Chief Land Commissioner, Lahore in connection with mutations Nos.105 and 147.

The Addl: Chief Commissioner, Punjab, Lahore, vide his order dated 20.2.75 has declared both the mutations as void in their entirety.

Consequently an area of 289 Acres and 6 kanals equal to 9157 PIUs, being in excess of the ceiling, is hereby, provisionally resumed free from all encumbrance as he has preferred an appeal before the Member, Federal Land Commission, Islamabad.

He is directed to furnish the choice about the area to be surrendered within 3 days positively failing which suo moto selection of the area should be made.

Feeling dissatisfied with the order dated 20.02.1975 passed by respondent No.2, petitioners Nos. 1 and 2 filed two separate regular revision petitions (No. R.P.I. (65-33) FLC/75 and No. R.P.I. (66-32) FLC/75) before the Federal Land Commission (Respondent No. 1). These revision petitions were dismissed through an order dated 17.02.1980, in the following manner:

The impugned order of learned ACLC held certain gift by the petitioners - declarants in favour of their brothers and sister to be void. The plea of the petitioners was rejected by the learned ACLC. That pleas was that brothers and sister can be gifted land under certain circumstances, if the gifted land was from inherited property and the donee had not received due shares of ancestral land. This plea of the petitioners rejected by the learned ACLC on the main ground that the father of the donee was alive until after the gift. There was, therefore, no question of the donee not having received their due share of inheritance, which under the Muhammadan Law commences after the death of the person from whom inheritance is to take place.

The reasoning adopted by the learned ACLC was correct and sound and on behalf of the petitioners no good ground has been shown such as would call for intervention by this Tribunal. The petitions are accordingly rejected.

The petitioners assailed said orders of respondents Nos.1 to 3 through filing above referred Constitution Petitions.

4. The learned Division Bench of this Court disposed of the said Constitution petitions while declaring that in view of declaration of law in "Qazalbash Waqf Case the pending proceedings before the Land Reforms Authorities are deemed to have been abated in respect of these three cases and held as under:-

2. It appears from the record that Muhammad Sardar Khan and Muhammad Akram Khan were owners of agricultural land in excess of the permissible limits under the Land Reforms Regulation, 1972. The dispute as between them and the Land Reforms Authorities went through various stages. However, the record shows that the land in excess of entitlement of the petitioners, was not finally resumed nor transferred to anyone. In these circumstances it has been argued by the learned counsel for the petitioners that in view of declaration of law in the case of Qazalbash Waqf and others v. Chief Land Commissioner Lahore and others (PLD 1990 SC 99) no further proceedings can be taken for resumption of land or its transfer to anyone.

3. In the aforesaid judgment it was held by the Supreme Court of Pakistan that the Provisions of the Land Reform Regulations, 1972 were repugnant to Islam. This judgment was to be taken effect from 23.03.1990.

In this view of the matter, the proceedings pending before the Land Reforms Authority are deemed to have been abated in respect of these three cases. There shall be no order as to costs.

5. The respondents challenged the said order through Civil Appeals Nos. 1108 to 1110 of 2007 before the august Supreme Court of Pakistan. The apex Court, while setting aside the impugned judgment, remanded the matter to this Court with a direction to decide the case afresh on merits, in accordance with the law, as per the following terms:

8. To cut a long story short we find that there can be no two views as regard the judgment under challenge before us that it lacks the basic requirement of a judicial order, as it has been passed in a slipshod and causal manner. One fails to understand as to how the proceedings which had taken place before the Land Reforms Authorities prior to the cutoff date i.e. 23.03.1990 given in the case of Qazalbash Waqf (Supra), will abate automatically, when the said judgment has itself protected such actions in Paragraph 7 of the order of the Court in the concluding part of the judgment, which reads as under:-

7.The operation of the self-executory provisions of the Regulation and the Act, 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 23.03.1990.

9. This being the position, without going into the further details of the matter, which may result in causing prejudice to the interest of some of the parties, we deemed it appropriate to set-aside the impugned judgment and disposed of these three appeals in terms of the short order, which reads as under:-

We have heard the learned ASCs for the parties. For reasons to be recorded later, these appeals are allowed. The impugned judgment is set-aside and the matter is remanded to the High Court, where Writ Petition Nos.373/1981, 4486/1981 and 4487/ 1981 shall be deemed to be pending and shall be decided afresh on merits in accordance with the law.

6. We have heard learned counsel for the parties at full length and gone through the record as well as the case laws referred by the parties, with their able assistance.

7. It is evident from the record that petitioners Nos.1 and 2, namely Muhammad Sardar Khan and Muhammad Akram Khan, were the original owners who transferred land measuring 4636 kanals to their brothers, namely Ghulam Mahar Ali and Muhammad Usman Khan (petitioners No.3 and 4), through oral gift mutation No.147 dated 28.11.1970. Similarly, they transferred land measuring 1469 kanals and 12 marlas to their sister, Farrah Iqbal (petitioner No.5), through oral gift Mutation No.105 dated 29.08.1970. Petitioners Nos.1 and 2 submitted a Declaration Form before the concerned Deputy Land Commissioner, who accepted the same and excluded the land mentioned in the above-referred oral gift mutations. However, the Land Commissioner, upon scrutiny of the Declaration Forms, reversed the order of the Deputy Land Commissioner by declaring mutation No.147 as void, and Mutation No.105 as partly void. Subsequently, on the appeals filed by petitioners Nos.1 and 2, the Land Commissioner upheld the findings with respect to mutation No.147 but modified the findings regarding mutation No.105. Petitioners Nos.1 and 2, feeling aggrieved, filed separate appeals before the Land Commissioner, who maintained the findings concerning mutation No.147 and held that mutation No.105 was also entirely void. Being dissatisfied, petitioners Nos.1 and 2 approached respondent No.1 by way of separate revision petitions, which were dismissed through order dated 17.02.1980.

8. The learned counsel for the petitioners advanced arguments on two grounds. Firstly, it was contended that the impugned orders are contrary to law, without jurisdiction, and liable to be set aside on the ground that Explanation II to Paragraph 7(b) of MLR-115 and Notification No.ASR-27/74/449-LC(II) dated 23.01.1974 are clearly applicable to the facts of the case. It was argued that the oral gift mutations are protected under the aforementioned legal provisions. The petitioners further asserted that their father had gifted the entire ancestral property to petitioners Nos.1 and 2, thereby diverting the course of inheritance and depriving petitioners Nos.3, 4, and 5 of their rightful shares. Consequently, petitioners Nos.1 and 2 made the oral gifts to Petitioners Nos.3, 4, and 5 in good faith, to grant them their due share in the ancestral property. Secondly, while placing reliance on the judgment of the Shariat Appellate Bench of the Hon ble Supreme Court, whereby, Paragraphs 7, 8, 9, 10, 13, 14, and 18 of MLR-115 were declared to be repugnant to the injunctions of Islam, argued that the respondents has no authority to resume the land in dispute after the cut-off date of 23.03.1990, and any proceedings pending before the Land Reforms Authorities are deemed to have been abated. Now we discussed said grounds separately.

9. It is a matter of record that the grandfather of the petitioners, namely Sardar Muhammad Usman Khan transferred the land measuring 9272 kanals through Mutation No.6 dated 07.04.1956 to his three wives namely Khair-un-Nisa, Noor Begum, and Noor Bhari to the extent of 1159 kanals ; to his son Sardar Muhammad Iqbal Khan to the extent of 3,245 kanals and 2 marlas ; and to his daughters Karam Ilahi, Sardar Begum, and Nawab Begum to the extent of 4,867 kanals and 16 marlas . These seven persons subsequently transferred 4636 kanals land to petitioner No.1 and 4,636 kanals to petitioner No.2 through mutation No.7 dated 07.04.1956. Similarly Sardar Muhammad Usman Khan who was also owner of land measuring 1124 kanals 18 marlas in Khata No.15 transferred said land to above named seven persons through oral tamleek mutation No.14 dated 07.04.1956. Said seven persons gifted said land to petitioners Nos.1 and 2 through oral gift mutation No.15 dated 11.04.1964.

10. Petitioners Nos.1 and 2, out of the transferred land gifted 1469 kanals and 12 marlas and 4636 kanals to their sister and brothers through oral gift Mutations Nos.105 and 147, respectively. At the time of said gift mutations, Sardar Muhammad Iqbal Khan father of the petitioners (Donors and Donees) was alive who has survived by one wife, four sons and three daughters. The petitioners claimed that these gifts were made in good faith, as petitioners Nos.3, 4, and 5 had not received their due shares in the ancestral property, since their father, Sardar Muhammad Iqbal Khan, did not leave any land to be inherited by them. Accordingly, petitioners Nos.1 and 2 sought protection of the oral gift Mutations Nos.105 and 147 under Explanation II to Paragraph 7(b) of MLR-115 and the Notification dated 23.01.1974.

11. In the context of the above, it is appropriate, first to see the Para No.7 of MLR-115 and Notification dated 23.01.1974 which reads as under:-

7. Certain transfers void. (1) Save as otherwise provided in this Regulation-

(a) the transfer of any land, and the creation of any right or interest in or encumbrance on any land, made in any manner whatsoever in respect of any area, on or after the 20th day of December 1971, by any person holding immediately before that date an area of more than one hundred and fifty acres of irrigated land or three hundred acres of unirrigated land or an area equivalent to twelve thousand produce index units (calculated on the basis of classification of soil as entered in the Revenue Records, for Kharif 1969 and Rabi 1969-1970), whichever shall be greater, shall be and shall be deemed always to have been void, and the land so transferred or encumbered shall be deemed to have been owned or possessed, as the case may be, by the person by whom it was owned or possessed immediately before that date:

Provided that in the case of a person to whom, the provisions of subparagraph (2) of paragraph 8 apply, no such transfer or creation of any right or interest or encumbrance shall be void unless he was holding on the said date an area more than fourteen thousand produce index units;

(b) save in cases where the Commission is satisfied that it was a bona fide transaction, the transfer of any land and the creation of any right or interest in or encumbrance on any land, made in any manner whatsoever, by any person holding at any time during the period from the first day of March, 1967, to the nineteenth day of December, 1971 (both days inclusive) an area equivalent to more than twelve thousand produce index units (calculated on the basis of classification of soil as entered in the Revenue Records for Kharif 1966 and Rabi 1966 67), shall be and shall be deemed always to have been void, and the land so transferred or the land on which the right, interest or encumbrance was so created shall be, and shall be deemed always to have been, owned or possessed, immediately before that date:

Provided that any transfer of land or creation of any right or interest in or encumbrance on any land by way of gift by a person to whom this clause applies shall, subject to the next succeeding proviso, in no case be held by the Commission to be a bona fide transaction:

Provided further that nothing in this clause shall apply to

(i) any transfer of land or creation of any right or interest in or encumbrance on any land, by way of gift or otherwise, made by a person in favour of his heirs; or

(ii) any transfer of land or right or interest therein, by way of gift, made by a person in favour of his widowed or unmarried sister, who has not received her due share of inheritance of ancestral land; or

(iii) any transaction whereby any land was alienated in exchange for an area of land equivalent to the same or substantially same produce index units as the land alienated;

Explanation I. For the purposes of this sub-paragraph and paragraph 10, an heir shall mean the owner s wife or wives, sons, daughters, father, mother and sons and daughters of a deceased son or daughter.

Explanation II. Deleted by Land Reforms (Punjab Amendment) Act (XI of 1973) Explanation III. In determining whether a transaction referred to in clause (b) of paragraph (1) was bona fide or otherwise, the Commission shall, among other matters, take into consideration the following factors:-

(i) whether adequate consideration has been paid by or on behalf of the person in whose favour the transfer has been made or any right, interest or encumbrance has been created;

(ii) under whose management the land has remained which is claimed to have been transferred or in respect of which any right, interest or encumbrance has been created;

(iii) who has been paying the land revenue and other charges in respect of such land;

(iv) who has been receiving the rent for or batai share from such land.

(2) If any question arises where any transfer or other transaction is or is not void under sub paragraph (1), the decision of the Commission thereon shall, subject to the provisions of paragraph 29, be final.

(3) Nothing in sub paragraph (1) shall apply to any transfer of land or the creation of any interest or right or encumbrance on any land made by a person who held on twentieth December 1971, land in excess of the permissible limits under paragraph 8, after he has surrendered to Government, in accordance with the provisions of this Regulation, the land in excess of such limits.

NOTIFICATION

Lahore, dated the 23rd December, 1974.

No. ASR-27/74/449-LC (II). In exercise of the powers conferred on it by sub-paragraph (8) of paragraph 4 of the Land Reforms Regulation, 1972, the Land Commission of the Punjab, with the approval of the Prime Minister, is pleased to provide that a gift made by a sister in favour of a brother, or by a brother in favour of another brother, who may not have received due share of inheritance of ancestral land shall also be accepted by the Land Commission as being in order.

Said Notification was subsequently withdrawn vide Notification dated 21.12.1978 which reads as under:-

LAND COMMISSION OF THE PUNJAB NOTIFICATION

Lahore, dated the 21st December, 1978.

No.AS(MPL)-59/78/6813-LC. The Land Commission of the Punjab, under the direction of the Federal Government, is pleased to cancel its notification No.52-27/74/449-LC(II), dated the 23rd January, 1974, the said notification has been held to be illegal and ultra vires of the basic provisions of the Regulation.

Although the Notification dated 23.12.1974 was subsequently withdrawn vide Notification dated 21.12.1978 but before said withdrawal, the Chief Land Commissioner vide its order dated 20.02.1975 declared both the mutations as void. Hence, withdrawal of Notification dated 23.12.1974 has no effect upon the merit of instant case.

12. Admittedly, at the time of attestation of the oral gift mutations Nos.105 and 147, the father of both the donors (petitioners Nos.1 and 2) and the donees (Petitioners Nos.3 to 5) was alive. During his lifetime, there could be no question of receiving any inheritance by the donees, and consequently, the issue of deprivation from their rightful shares of inheritance did not arise. Admittedly, when petitioners Nos.3 to 5 received the land through the aforementioned oral gift mutations, they were not deprived of any due share of inheritance. Accordingly, the Land Reforms Authorities rightly scrutinized the oral gift mutations under Paragraph 7(I)(b) of MLR-115 of 1972 and lawfully declared the said gift transactions as void being not bona fide transactions. Thus, the exemption contemplated in item (ii) of the second proviso to Paragraph 7(I)(b) of the Regulation was not applicable in the present case. Petitioners Nos.1 and 2 received land not only from their father but also from their grandmothers and paternal aunts. Therefore, contention of petitioners Nos.1 and 2 that the gifts were made in favour of petitioners Nos.3 to 5 to give them their rightful inheritance share has no force. The provision of paragraph 7 of MLR-115 permitted the gift only when the donee had been deprived of inheritance and did not apply where the inheritance had not yet opened.

13. Learned counsel for the petitioners while relying upon the case titled Zakaullah and 2 others v. Member, Federal Land Commission and 3 others (1984 CLC 283) and the case titled Muhammad Aslam and 5 others v. Haji Khuda Dad Khan through L.Rs. and 7 others (2008 SCMR 886) maintained that gifts made by a declarant are only subject to scrutiny to determine whether the gifted land can count towards the donor s holding or not and the said scrutiny cannot render the gift void.

In Zaka Ullah s case (referred supra), Zaka Ullah received 1200 kanals of land as a gift from his father in the year 1960. Subsequently, on 17.07.1969, he gifted 763 kanals and 2 marlas to his two minor sisters through Mutation No.20. The Land Commissioner, vide order dated 23.12.1972, held that the gift in favour of the sisters was not valid, because they had not been deprived of their inheritance as the father of both the donor and the donees was alive at the relevant time. The said order was assailed before the Chief Land Commissioner, who dismissed the revision petition, holding that the provisions of Paragraph 7(I)(b) of MLR-115 permitted gifts to sisters only where they had been deprived of their inheritance. Thereafter, both the donor and the donees filed a further revision petition before the Federal Land Commissioner, which was dismissed on 07.02.1974 on the ground that Explanation I to Paragraph 7(I)(b) did not apply where the inheritance had not yet opened and Division Bench of this Court disposed of the petition in the following terms:

6. In view of what has been stated penultimate paragraphs, the petition is partly allowed to the extent that the gift to the sisters will be valid and effective but the holding of the declarant, petitioner No.1, will be calculated including the gifted land for the purposes of the regulation and action taken in accordance with law. (emphasis supplied)

The august Supreme Court of Pakistan in Muhammad Aslam s case (referred supra) observed as under:-

The exclusion of gift transaction for the purpose of Land Reforms Regulation, 1972 would not ipso-facto invalidate the gift and made it ineffective between the donor and the donee. The object of examination of gift under Land Reform Regulation, 1972 would be confined only to the extent of defining the holding of a declarant for the purpose of Para 8 of said Regulation and, therefore, the exclusion of gift from consideration by the functionaries of the Land Commission would not effect the gift mutation sanctioned under Land Revenue Act, 1967, therefore, the gift made by the declarant except for the purpose of Regulation 115 would remain valid and effective between the parties to the gift. (emphasis supplied)

The Division Bench of this Court in a case titled as Mst. Raj Bibi and 4 others v. Additonal Chief Land Commissioner, Punjab, Lahore and 2 others (PLD 1975 Lah. 408) wherein it was held that the gift in favour of the sisters shall remain valid and effective, except for the purpose of the MLR-115. Consequently, the holding of the declarant shall be considered as it stood prior to the gift, and he will remain liable to surrender land to the extent required under the Regulation.

14. No doubt, where any transaction is declared void by the Land Reforms Authorities, such a transaction is treated as void only for the purposes of the Regulation, and not otherwise. It shall continue to remain valid and effective between the parties inter se.

15. In the present case the Land Reforms Authorities declared the oral gift mutations Nos.105 and 147 invalid in order to ascertain the holding of the declarants i.e. petitioners Nos.1 and 2 and did not declare the gift void inter-se the parties. Therefore, the cases referred by the learned counsel for the petitioners are not helpful to the petitioners case. However, in order to further clarify, it is observed that the gifts made by petitioners Nos.1 and 2 are valid and effective, except for the purpose of the MLR-115.

16. The next contention raised by the petitioners is that, since no decisive steps were taken in the matter, their case, for all intents and purposes, falls within the ambit of the rule of past and closed transactions , which could not be reopened in light of the declaration made in Qazalbash Waqf s case. It is argued that the gifts affected by Paragraph No.7 of the Regulation must now be treated as having been properly and validly made.

17. There is no doubt that in the case of Qazalbash Waqf and others v. Chief Land Commissioner and others (PLD 1990 SC 99), the Shariat Appellate Bench of the Hon ble Supreme Court declared certain provisions of the Regulation, particularly Paragraphs 7, 8, 9, 10, 13, and 14, to be repugnant to the injunctions of Islam. However, in the said judgment, it was categorically observed that the declaration would take effect from 23.03.1990, and that provisions of the Regulation which were self-executory would not, in any manner, be affected thereby till said date. For reference, Paragraph No.7 of the judgment of the Court is reproduced as under:

The operation of the self-executory provisions of the Regulation and the Act, and the provisions ancillary thereto shall no manner be affected by this decision till the aforesaid provisions cease to have effect i.e. 23-3-1990.

18. A Five Member Bench of august Supreme Court of Pakistan while deciding Civil Appeals Nos.292 and 293 of 1976 in the light of Qazalbash Waqf dictum defined the proposition as to what can be construed to be a decisive step pursuant to said case held as under: -

In the written arguments submitted in Appeals Nos.292, 293, 547, 848 and 139, reference has been made to the judgment of this Court in the case of Qazalbash Waqf v. Chief Land Commissioner (PLD 1990 SC 99) whereby the Shariat appellate Bench has declared certain provisions of the Regulation, particularly paragraphs Nos.7, 8, 9, 10, 13 and 14 to be repugnant to the injunctions of Islam. It is contended that in view of this judgment the gifts which were affected by paragraph 7 of the Regulation must now be treated to have been properly and validly made. This contention is without any merit. As pointed out in the judgment itself the declaration given therein was to take effect on 23.3.1990 and such provisions of the Regulation which were self-executory were not to be any manner affected thereby. In this context reference may be made to the observations of two of the learned Judges who delivered separate opinions in the aforementioned case. Thus, Muhammad Afzal Zullah, J. (as his lordship then was observed:-

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. (emphasis supplied)

Similarly, Shafiur Rehman J, observed:

As most of the provisions found repugnant to the 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 injunction of Islam takes effect.

It is to be noticed that by force of paragraph 7 of the Regulation itself all gifts, leaving aside those which were expressly saved, become void. The declaration submitted by the donors already stand scrutinized and the land, covered by the gifts have been treated as part of their holdings. Therefore, even if some of the appellants have yet not surrendered the excess land it would not make any difference for now it is a question of merely implementing the orders already passed by competent authorities. In the circumstances the appellants cannot take advantage of the judgment in the Qazalbash Waqf case. (emphasis supplied)

Once the excess land of declarant was to adjudge by competent authorities resumed under the law, it was for all intents and purposes is a matter covered by the rule of past and closed transaction, which could not be reopened/annulled on the basis of the judgment of the Qazalbash Waqf Case (PLD 1990 SC 99) . The august Supreme Court of Pakistan in this regard while rendering judgment titled as Muhammad Safdar and others v. Punjab Land Commission through Secretary and others (2012 SCMR 1725) held as under:-

Therefore, the partition of the khata and physical handing over of the possession shall be of no much effect, as according to the land reform authorities it was finally adjudged that the declarants have to surrender the specific units of the excess land, only for the reason that vide order dated 8-5-1982 it was subject to partition and the possession was to be given/taken over, after enabling the choice to the declarant to retain a part and to surrender the remaining in excess of his entitled under the law, would not mean that the decisive step was not taken in the matter. The provisions of the Act as has been held by the learned High Court in both the judgment dated 21-3-2002 (passed in writ jurisdiction) and also under the review are self-executory and, therefore, once the excess land of the declarant was to adjudged by the competent authorities resumed under the law, it for all intents and purposes was/is a matter covered by the rule of past and closed transaction, which cannot be reopened/annulled on the basis of the judgment in Qazalbash Waqf case. (emphasis supplied)

The learned Division Bench of this Court in a case Azra Parveen and 2 others v. Additional Deputy Commissioner (General)/Deputy Land Commissioner, Multan and another (2000 CLC 654) while deciding the question to the effect of the declaration of law as un-Islamic in the matters pending at the time on 23.03.1990 held as under:-

10.In view of the above dictum, it becomes necessary to determine as to whether in the present case any decisive step had been taken before 23-3-1990 when the judgment of the Supreme Court was to become effective. On the basis of the record, it cannot be denied that much earlier to the aforesaid date i.e. on 2-10-1989 petitioner No.1 had been served with a notice in terms of section 7(5) of the Punjab Land Reforms Act, 1977 calling upon her to show cause as to why her holding may not be determined and the excess land resumed. These proceedings were admittedly pending on 23-3-1990 and a decisive step by the issuance of notice under section 7(5) of the Land Reforms Act, 1977 had already been taken. That being so, the case against the petitioner was not hit by the law declared by the Supreme Court of Pakistan in Qazalbash Waqf s case. Reference in this connection may also be made to Chief Land Commissioner, Punjab and others v. Chief Administrator of Auqaf Punjab and others in which the same principle was reiterated and it was held that in cases where a decisive step has been taken before 23-3-1990 would not be hit by declaration of law in Qazalbash Waqf s case supra. As a result of what has been stated above, this petition has no force and is dismissed leaving the parties to bear their own costs. (emphasis supplied)

In another case titled as Iqbal Hussain Qureshi and another v. Federal Land Commission, Islamabad through Chairman and 11 others (2002 YLR 1669) the learned Division Bench of this Court observed as under:-

The land of the original declarant was resumed by the Deputy Land Commissioner in the year 1982 and thereafter this Court directed the petitioners to give choice to surrender area in excess of the land given to the petitioners in pursuance of order dated 16-9-1982 passed by the Commissioner Bahawalpur and deal with the same in accordance with law vide judgment dated 7-3-1993. The aforesaid judgment was upheld by the Hon ble Supreme Court vide judgment dated 30-5-1994. The decisive steps have already been taken. That being so, the case against the petitioners was not covered by the law declared by the Hon ble Supreme Court in Qazalbash Waqf s case meaning thereby that the land which was the subject-matter of the present controversy of the petitioner had already vested in the Provincial Government under the Self Executor Provisions of Land Reforms Law and resumed long before 23-3-1990. It is settled principle of law that judgments of the Hon ble Supreme Court have prospective effect and not retrospective effect as per the principle laid down in Muhammad Yousuf v. The Chief Settlement and Rehabilitation Commissioner Pakistan, Lahore and others (PLD 1968 SC 101). Therefore, principle of past and closed transaction is attracted in the present case as per the dictum laid down by the Hon ble Supreme Court in Noor Din v. The Chairman, Miani Sahib Graveyard Committee, Lahore (PLD 1973 SC 17). It is admitted fact that respondent No.1 passed the impugned order after providing proper hearing to the petitioners. Therefore, the contention of the learned counsel for the petitioners that respondent No.2 passed the order in violation of principle of natural justice was rectified as revision petition of the petitioners were decided after providing proper hearing of the petitioners. The land of the original declarant was resumed under the provisions of Martial Law Regulation No.115 of 1972 but the possession of the land was not taken over by the Land Reforms Authorities. Subsequently land was finally resumed by the Land Reforms Authorities in the year 1982 under the provisions of section 7 of Land Reforms Act of 1977. Therefore, respondents Nos.1 and 2 were justified to pass the impugned orders against the petitioners as the petitioners have acquired the rights being the legal heirs of the original declarant. In this view of the matter the petitioners are estopped to challenge the order of resumption passed by the Land Reforms Authorities on the well known principle of Estoppel and Waiver. (emphasis supplied)

Learned Division Bench of this Court in another case titled Syed Mohsin Naqvi and others v. Federal Land Commission and others (2010 YLR 3248) observed that the making of declaration, the passing of first resumption order and ultimately the order passed by the Senior Member Federal Land Commissioner all constitute decisive steps in the matter and held as under:-

30. The predecessor-in-interest of the petitioners of Writ Petition No.5039 of 2008 Jamil Hussain Naqvi made a declaration on 24-5-1977 by submitting Form L.R.1977-I which is placed as Annexure-A of the said writ petition in which he surrendered land equivalent to 2207 P.I. Units after retaining the basic ceiling of 8000 P.I. Units. Upon this declaration the Deputy Land Commissioner Lahore made a determination of the entitlement of the declarant by order dated 22-10-1977 and he calculated the excess land to be resumed equivalent to 6032 P.I. Units. Although the order dated 22-10-1977 passed by the Deputy Land Commissioner, Lahore was subjected to appeal but ultimately a final determination of the resumed land was undertaken by the Senior Member Federal Land commission through an order dated 20-1-1983 and after the said determination the matter was remitted back by the Senior Member Federal Land Commission for calculation purposes to the Deputy Land Commissioner in the light of the observations made in Paragraphs Nos.5 and 6 of the order dated 20-1-1983 of the Senior Member Federal Land Commission.

31. This order was challenged through Writ Petition No.4906 of 1983 and was upheld by a learned Single Judge of this Court through judgment dated 22-2-2000. The Hon ble Supreme Court of Pakistan refused to interfere in the matter and the leave was declined vide order dated 3-7-2002 passed in C.P.L.A. No.1679-L/2002. The making of declaration, the passing of first resumption order dated 22-10-1977 and ultimately the order passed by the Senior Member Federal Land Commission dated 20-1-1983, all constitute decisive steps in the matter. Therefore, the objection of the learned counsel for the petitioners that the impugned order dated 21-3-2007 passed by the Deputy Land Commissioner is a fresh resumption order and is violative of the law laid down by the Hon ble Supreme Court of Pakistan in Qazalbash Waqf and others v. Chief Land Commissioner, Punjab, Lahore and others (PLD 1990 SC 99), having been passed after the target date fixed therein has no substance and is rejected. The impugned order passed by the Deputy Land Commissioner dated 21-3-2007 is passed in implementation of the original order dated 20-1-1983 passed by the Federal Land Commission and has the effect of calculating the P.I. Units of the original allottee as resumed under the provisions of Land Reforms Act, 1977 and following calculation was arrived at. (emphasis supplied)

19. In the present case the Land Reforms Authorities declared the gift mutations as void. The Deputy Land Commissioner keeping in view the order dated 20.02.1975 of respondent No.2 through his order dated 30.04.1975 provisionally resumed the land in excess of the ceiling of petitioners Nos.1 and 2 free from all encumbrance by including the gifted land in the ceiling of said declarants. The declaration submitted by the donors (declarants) already stand scrutinized and the land covered by the gifts has been treated as part of their holdings. Therefore, if the petitioners Nos.1 and 2 have not given their choice for resumption of land, it would not make any difference for now as it is a question of merely implementing the orders already passed by competent authorities. In the circumstances the petitioners cannot take advantage of the judgment in the Qazalbash Waqf case.

20. Learned counsel for the petitioners argued that by the introduction of Section 25 of Land Reforms Act, 1977 (Act II of 1977), all the proceedings pending before the Federal Land Commission were abated and the Notification No.II-1977-LR-1-78 dated 23.09.1978 was also of no avail as the same had been declared ultra vires by the Hon ble Supreme Court of Pakistan in its judgment reported as Federal Land Commission through its Senior Member, Islamabad. v. Sher Muhammad and others (PLD 1990 SC 626 ). While relying upon Federal Land Commission through Chairman v. Rais Habib Ahmed and others (PLD 2011 SC 842), added that the abatement under Section 25 of the Act operates ipso-jure (by operation of law), thus all pending proceedings shall as per force thereof extinguish.

It is matter of record that the Chief Land Commissioner declared the mutation Nos.105 and 147 as void vide order dated 20.02.1975. Petitioners Nos.1 and 2 assailed said order of Chief Land Commissioner through filing independent revision petitions before the Federal Land Commission.

During the pendency of said revision petitions, the Land Reforms Act, 1977, was introduced. Section 25 of the said Act related to abatement of pending proceedings which reads as under:

"All proceedings pending before the Federal Land Commission shall, on the commencement of this Act, stand abated unless the Federal Government directs otherwise in a case or class of cases"

Thereafter, through Notification No.II-1977-LR-1-78 dated 23.09.1978, it was declared that the pending proceedings before the Federal Land Commission shall not stand abated, which reads as under:

"In exercise of the powers conferred by section 25 of the Land Reforms Act 1977, the federal government is pleased to direct that the proceedings in cases under Paragraph 29 of the Land Reforms Regulation 1972, pending before the Federal Land Commission on the commencement of the said Act shall not stand abated"

Said notification was declared ultra vires by the High Court of Sindh. Federal Land Commission assailed said judgment through preferring C.P.L.A. before the Hon ble Supreme Court of Pakistan which was refused vide judgment reported as Federal Land Commission through its Senior Member, Islamabad. V. Sher Muhammad and others (PLD 1990 SC 626), with the following observations:

The learned Judges of the High Court having examined the purport of his direction made the following very weighty observations in that behalf:-

We are inclined to hold that under above-quoted section 25 the Federal Government had the power to direct that a case or class of cases could not stand abated but it could not have issued the impugned Notification directing that all the cases which were pending before the Federal Land Commission before the enactment of the Act shall not be abated. The impugned Notification in fact purports to nullify the effect of section 25 of the Act as a whole and, therefore, it is ultra vires of the powers of the Federal Government."

We also agree with the interpretation of the Notification in question by the High Court. Its language, intention and purport obviously was to do away with the abatement of all cases covered by section 25, which was neither the intention underlying the said provision nor by its language it was permissible. Accordingly, while condoning the delay in filing of some of the petitions we do not consider it a fit case for grant of leave to appeal. The same, therefore, is refused."

In the present case, the Chief Land Commissioner had already declared the mutations Nos.105 and 147 as void before the promulgation of the Act, 1977 and revision petitions of the petitioners Nos.1 and 2 were pending before the Chairman Federal Land Commission, therefore, the abatement of pending proceedings would not be helpful for the petitioners as their mutations had already been reviewed.

The case law referred to by the learned counsel for the petitioners is distinguishable to the facts and circumstances of this case, hence not helpful for the petitioners.

21. Learned counsel for the petitioners failed to point out any illegality, irregularity, jurisdictional defect in the impugned orders which require any interference by this Court while exercising its constitutional jurisdiction.

22. Hence, in view of the above discussion the instant writ petition as well as connected Writ Petitions (W.P.Nos.4486 and W.P. No.4487 of 1981) have no force and substance, therefore, dismissed accordingly.

UN/M-182/L Petitions dismissed.