P L D 1977 Lahore 57 (PLP)

KARAM ELAHEE CHAUHAN, J.‑The point involved is a short one and it is not necessary to mention the details and the stages through which the present case had been passing. Suffice it to say that on 11‑12‑1968 the Chief Land Commissioner examined the proceedings of Mutation No. 92/94 pertaining to gift of 908 kanals 8 marlas of land in village Khaurewala, Tehsil Kabirwala, District Multan. That mutation had been entered on the basis of certain declaration made by the petitioner whereby he reported to the revenue authorities that he had gifted the aforesaid land in favour of his two minor sons, namely, Mukhtar Hussain Shah and Javaid Hussain Shah. Later on he tried to curtail the area of that gift so as to reduce it to 648 kanals and retain with himself an area of 260 kanals and 8 marlas at the time when the mutation came up for attestation before higher officers. The Chief Land Commissioner in the aforesaid order held that no curtailment from the area originally gifted could have been made at the stage when the petitioner wanted to curtail the same. This aspect of the order of the learned Chief Land Commissioner is not being challenged before us. The petitioner filed a review application on 5‑5‑1969 wherein he submitted that he had earlier worked out his ceiling by counting the area of 260 kanals and 8 marlas into his holding but now as the said area, as a result of the order of the learned Chief Land Commissioner, was not to be considered in the holding of the petitioner, therefore, the petitioner should be allowed to make good his ceiling of 36,000 Produce Index Units from the other land which belonged to him and exercise his choice in that respect afresh for an area of 260 kanals and 8 marlas. The learned Chief Land Commissioner dismissed that review application on 12‑5‑1.969 which is to be read with his order dated 13‑5‑1971 wherein he again reiterated his finding that the prayer of the petitioner could not be acceded to at that stage because curtailment c f gift or retention of an area of 260 kanals and 8 marlas had earlier been allowed to the petitioner just as a matter of grace. The petitioner has come up in writ petition against the last mentioned proceedings and orders of the learned Chief Land Commissioner with the following prayers :‑ "(a) In the circumstances it is respectfully prayed that the order of the Chief Land Commissioner so far as it denies the petitioner, his rights to opt for and take his remaining entitlement equivalent to 260 kanals 8 marlas of land be kindly declared to be without lawful authority and of no legal effect. (b) It is further prayed that the respondent be directed to allow the petitioner to opt and get Square No. l I and Squares Nos. 2 and 9 in Cbak No. 9/668 G. B., District Lyallpur." Since the land with respect to which the second part of the above prayer was concerned had in the meantime been sold by the Land Commission to and purchased by Mst. Zenab Khizer Hayat Tiwana, she was later on added as a party in the case by means of Civil Miscellaneous Application No. 5330 of 1975 which was allowed on 31st October 1975, subject to all just exceptions. She was represented in this case by Haji Ghias Muhammad, Advocate.

2. Before proceeding further it is instructive to reproduce the relevant portions of the judgments and orders of the learned Chief Land Commissioner dated 11‑12‑1.968 and 13‑5?1971 (Annexures 'A' and 'C') respectively. In para. 9 of the order dated 11‑12‑1968 he wrote as follows :‑ "The respondent has stated to have made no gift under para. 9 or 11 of Martial Law Regulation No. 64, because his limit, as admissible under the above paras, had already been exhausted. So his own holding will now be reduced to the extent of 260 kanals and 8 marlas to make it equal to 36,000 P. I. Units. In this behalf, it is observed that he will not be allowed to retain any more area to make it equal to the fixed ceiling at this stage. The revision petition is accepted to the extent as per observations made above." In para. 5 of the order dated 13‑5‑1971, he wrote as follows :‑ "Considering the various dates and the changes suggested by rule 1, there is little doubt that the gift was nominal. This Court allowed the gift as a matter of concession. In view of this rule 1 cannot be allowed to ask for his pound of flesh which would mean disturbance of a large number of tenants." The above finding and decision of the learned Chief Land Commissioner, as was argued by the learned counsel for the petitioner, is without lawful authority, inasmuch as, under paras. 8 and 9 of the Land Reforms Regulation 59 of 1964 it was a right of a land owner to have and retained land upto a ceiling of 36,000 P. I. Units. The fact that certain area which was earlier counted in the total holding of the declarant land owner, is now held by the learned Chief Land Commissioner as not to belong to the declarant but to some other person or persons, namely, donees, does not mean that the declarant is to be deprived of his rights to retain land upto 36,000 P. I. Units from such land as has been held by the learned? Chief Land Commissioner as belonging to him. This is evident from the provisions of paras. 8 and 9 of the Regulation itself and is further clarified in Chapter II and III of the book Land Reforms in West Pakistan, Volume 1, 1960 Edition. For the proposition that where a change in the total holding takes place due to, for instance, the determination regarding the nature of certain piece of land that does not deprive the land owner of his right to retain land of his choice upto the permissible ceiling, see Nawab Hajt Khair Muhammad Khan v. The State P L D 1966 S C

604. In that case certain piece of land was described as 'lakes'. A question arose whether it was 'land' within the meaning of this word as defined in para. 2(5) of Land Reforms Regulation 59 of 1964. The earlier view was that it was not 'land' and total holding of the declarant landowner was determined on that basis. Later on, however, it was held that 'lakes' were included in the term 'land'. In that context the Supreme Court held at pages 609 and 610 that "here, we may pause to point out that there being a ceiling fixed, and final choice having to be made within that ceiling out of a number of categories of land falling within the Regulation, each category having its own measure of value in terms of produce index units, a person who is called upon to make a choice, which is to fix the limit of his future estate permanently, cannot be regarded as having made his final choice, or having been allowed to make his final choice, unless he is made aware not only of what he may retain and what he may not retain (e g. as respects the Jagirdari land in this case) but also of the rates at which each category of land is to be evaluated in terms of the produce index units. He is bound to keep within a ceiling of 36,000 such units, and unless he knows the measure, in terms of units, applied to such category of the land he owns, he cannot be in a position to select the pieces be will retain, nor can he be deemed to have made any choice, so as to produce the effect of finality". Respectfully following that view we hold that since it was by the impugned orders only that the learned Chief Land Commissioner finally determined as to what land could be considered as belonging to or not belonging to the declarant, he acted without lawful authority in not allowing the petitioner to retain land upto 36,000 Produce Index Units or exercise a choice in the now perspective of his order as pleaded in first part of the prayer of the petitioner reproduced as 'a' in para. 1 above.

3. When confronted with this situation, Haji Ghias Muhammad, learned counsel for Mst. Zenab Khizer Hayat Tiwana, who had purchased certain earlier surrendered land of the petitioner‑(and which or part of which land the petitioner wanted to include in his holding}‑submitted that his client was a bona fide purchaser of that land for value without notice of the mistake later on rectified by the Chief Land Commissioner in the holding or the extent of the holding of the petitioner and as such her rights should be preserved and should not be affected by the present writ petition or the order passed therein. In this connection ho placed on record copies of Mutations Nos. 256 and 296 and a photostat copy of a letter bearing No. DSL‑84/71/1327‑L. C. from the Secretary Punjab Land Commission to the Deputy Land Commissioner, Lyallpur, dated 15‑4‑1971 authorising the sale of land mentioned therein to her. He also argued that under para. 8 read with para. 32 of M. L. R. 115 of 1972, as the petitioner would now retain land up to the limited extent of new ceiling of 12,000 P.

1. Units only, therefore, we should not give any relief to the petitioner to accomplish old ceiling which is no longer operative. He submitted that the change in law which has come into being during the pendency of the present writ petition in this Court and due to which the present ceiling is far below 36,000 P. I. Units is a circumstance to be taken note of, with the result that even if the learned Chief Land Commissioner did not earlier allow the petitioner to complete the ceiling of 36,000 P. I. Units the same in the now context is immaterial a9 now the petitioner in the last analysis will rather have to surrender more and the effort for fulfilling the old ceiling limit is just an exercise in futility. He further submitted that in the alternative the petitioner has no right to pick up for addition into his old ceiling the land purchased by Mst. Zenab Khizer Hayat Tiwana because while filling the relevant L. C. forms under M. L. R. 115 of 1972 the petitioner did not earlier give any indication nor reserve any right to exorcise any choice for retention of her land. Similarly, he argued, that even in the impugned proceedings no mention of her land was ever made by the petitioner anywhere. We have no intention to make any observation on the title and rights of Mst. Zenab Kbizer Hayat Tiwana, because, that matter has not so far been apparently raised before or adjudicated upon by any Land Reforms Authorities and also because she was never made a party in those proceedings and as such we would not like to express any opinion regarding position of the present parties in that particular respect. As to how far the petitioner can assert his rights against Mst. Zenab Khizer Hayat Tiwana is a question which is thus left open to be decided by the Land Reforms Authorities and nothing written here is intended to dilate on that subject in any manner. In the instant case we are concerned solely with the validity of the impugned orders which we have determined above and as a consequence whereof we have held and clarified that the said orders were without lawful authority and of no legal consequence against the petitioner only insofar as they did not allow the petitioner to retain land upto 36,000 P. I. Units under the old Land Reforms Regulation 59 of 1964. In other words we are granting first part of the prayer of the petitioner as reproduced in para. 1 above as 'a' but not passing any order with regard to second part of the said prayer marked as 'b' above leaving it for adjudication by the Land Reforms Authorities in accordance with law. This judgment and order should be considered as limited to that extent and is not to be extended any further. Again as to how in the new context and under the new law the petitioner has a right to or will work out his new ceiling is to be determined by the Land Reforms Authorities and we leave the matter open for their adjudication, because, we feel there is neither any occasion nor any justification on our part to dilate upon it, especially when the Land Reforms authorities have not given their own findings or decisions uptil now on that subject There shall, however, be no order as to costs. S. A. H. ????????????????????????????????????????????????????????????????????? Orders accordingly.