P L D 1975 Lahore 967 (PLP)

K. E. CHAUHAN, J.‑The following pedigree‑table will help in under standing the facts of this cases: Pir Hayat Shah (died on 6‑8‑1970) = Widow Mst. Iqbal Begum | Zia‑ud‑Din Shah

Naeem‑ud‑din

Mst. Ozma

Mst. Ashraf Begum petitioner Shah (declarant) (non‑declarant) (She also died and (minor) left certain heirs (declarant) whose names are not available on the present record. She and her heirs, however, are non declarant. Pit Hayat Shah owned landed properties in Village Nabipur Piran and Sorar, Tehsil Nankana Sahib, District Sheikhupura. He died on 6‑8‑1970 leaving behind a widow Mst. Iqbal Begum, two sons namely, Zia‑ud‑Din Shah (petitioner) and his elder brother Naeem‑ud‑Din Shah two daughters whose names were Mst. Ozma and Mst. Ashraf Begum. The two sons were declarants under the Land Reforms Regulation (Martial Law Regulation No. 115 of 1972) whereas all the female heirs were non‑declarants.

2. After the promulgation of Land Reforms Regulation of 1972, the case of the two brothers hereinbefore mentioned came up for scrutiny. It is to be pointed out that Naeem‑ud‑Din Shah (elder brother of the petitioner) had a tractor which stood registered in his own tame. In the joint land inherited from ,Pit Hayat Shah, there was installed a tubewell. According to Paragraph 8 of Martial Law Regulation No. 115, a declarant, who owns a tractor or on whose land there is installed a tubewell, can retain an additional area of 2000 Produce Index Units. The two brothers tried to make the best of the aforesaid provision of law and submitted (i) that both tractor and tubewell were their exclusively joint properties and that they had settled the matter in this way that tractor was under a family arrangement given to the elder brother and tubewell exclusively to the younger brother. (ii) In this manner they submitted that each of them should be independently allowed to retain an additional area: of 2000 produce index units. The learned Deputy Land Commissioner by means of his order, dated 25‑7‑1972 held that the tractor was exclusive property of the elder brother (not as a result of any family settlement but otherwise), therefore, he was eligible to retain an additional area to the extent of 2000 produce index units. As regards the tubewell, he held that it was not the exclusive property of the petitioner but due to a family settlement was shared in half‑and‑half by the two brothers. The younger brother, as such it was held, was eligible to retrain an additional proportionate area of 1000 produce index units only. The petitioner filed an appeal and the learned Land Commissioner by means of his order dated 5‑9-1972, referred the case to the Land Commission/ Chief Land Commissioner under Paragraph 4 (6) of M. L. R. 115 of 1972. The authorities concerned, however, sent the case back to the learned Land Commissioner desiring that he should decide the same in the first instance. The matter was thus taken up by the learned Land Commissioner who by means of his order, dated 3‑1‑1973, held that the share of the petitioner in the tubewell was only to the extent of 7/24, as already mentioned, the case of the petitioner was that after the promulgation of Martial Law Regulation No. 115 of 1972, the other heirs of Pir Hayat Shah surrendered their shares in his favour and, therefore, he was the only and sole owner of the tubewell. The learned Land Commissioner did not accept this surrender holding that it was beyond the target date of 20‑12‑1971 whereafter no transfer of land by a declarant was permissible.

3. The petitioner filed a revision but without any success as the same was dismissed by the learned Additional Chief Land Commissioner on 3‑7‑1973. Feeling aggrieved from the aforesaid proceedings and orders, the petitioner has come up in writ petition to this Court.

4. Before proceeding further, it is necessary to highlight certain facts and they are as fellows: (a) That, as already mentioned, Pir Hayat Shah died on 6‑8 1970 and the estate left by him was mutated in favour of his legal heirs mentioned in the above pedigree‑table in accordance with, as it was conceded before us, the Muhammadan Law. The tubewell had been installed by Pir Hayat Shah himself in 1963 and after his death all the heirs became shareholders therein as also in the land underneath it. (b) From a perusal of the grounds for revision as contained in Annexure D , it appears that according to the petitioner the tubewell having been installed in the lifetime of the father of the petitioner, the woman folk of the house held a share in it‑‑‑". It is further written in the aforesaid revision petition that, "at the time of filing declaration, all the womanfolk renounced their share in the tubewell in favour of the petitioner Pir Naeem‑ud‑Din Shah‑‑ " The petition further goes on to recite that, "the petitioner and Pir Naeem‑ud‑Din Shah having become entitled to hold 1/2 share of the tubewell decided to renounce 1/2 share held the tractor in favour of each other in accordance with the family settlement. This renouncing of the share by Pir Naeem‑ud‑Din Shah regarding the tubewell has not been accepted by the Deputy Land Commissioner nor by Land Commissioner‑‑‑." ‑ In Paragraph 5 of the Writ Petition it is averred that, "the petitioner who was represented by his elder brother in support of the averments made in the declaration form filed affidavits sworn by his mother, as also the other heirs of Pir Hayat Shah wherein it had been deposed by theta that the land in dispute alongwith the tubewell installed thereon was the sole and exclusive property of the petitioner and that they had nothing to do therewith."

5. Learned counsel for the petitioner referred to Paragraph 8 of the Martial Law Regulation No. 115 of 1972, which reads as follows: "

8. Limits on individual holdings.‑(1) Save as otherwise provided in this Regulation, no person shall, at any time, own or in any capacity possess land in excess of one hundred and fifty acres of irrigated land or three hundred acres of unirrigated land, or irrigated and unirrigated land the aggregate area of which exceeds one hundred and fifty acres of irrigated land (one acre of irrigated land being reckoned as equivalent to two acres of unirrigated land), or an area equivalent to twelve thousand produce index units of land, whichever shall be greater. (2) Notwithstanding the provisions of sub‑paragraph (1), an owner may retain, out of the area of land he was holding immediately before the commencement of this Regulation, such additional area, if any, which would bring the total area retained by him to the equivalent of fourteen thousand produce index units if on the 20th of December 1971‑ (i) he owned an agricultural tractor, certified to be in good working order by an officer authorised by Commission in this behalf; or (ii) there was installed on his land a tubewell of not less than ten horse power. (3) Any person, who, at any time before the commencement of this Regulation but not earlier than the 21st day of December 1971, became the owner of an agricultural tractor certified as provided in clause (i) of sub‑paragraph (2) or had installed on his land a tubewell of not less than ten horse‑power, or at any time after the commencement of this Regulation becomes the owner of such a tractor or instals on his land such a tubewell, shall, notwithstanding, the provisions of sub paragraph (1), be entitled, after becoming the owner of such tractor or having installed such a tube‑well, to acquire, possess or own such additional area as would bring the total area possessed or owned by him to the equivalent of fourteen thousand produce index units: Provided that a person who on the twentieth day of December 1971, was in possession of an area of land equivalent to more than twelve thousand produce index units shall not be entitled to possess any additional area of land under this sub‑paragraph until he has surrender ed to Government land in excess of area equivalent to twelve thousand produce index units."

6. The first point argued by the learned counsel for the petitioner was that according to sub‑paragraph (2) of paragraph 8 of M.L.R. 115 a declarant was eligible to retain an additional area of 2000 Produce Index Units if on his land there was instilled a tubewell. The ownership of tubewell, it was submitted, was immaterial and all that was essential was that the land on which the tubewell was installed should be his. He referred to clause (i) of sub‑paragraph (2) of paragraph 8 which deals with a tractor and submitted that whereas in that clause it was essential for a declarant to establish that on the 20th December 1971, "he owned an agricultural tractor" the word `owned' was not used in clause (ii) where the emphasis was on the existence of a tubewell rather than its ownership. Comparing and contrasting clauses (t) and (ii) of sub‑paragraph (2) of paragraph 8 the learned counsel argued that the Land Reforms Authorities have acted without lawful authority in introducing extraneous consideration of ownership into this subject. Developing the argument he submitted that agriculture in this country has of late entered into progressive stages and has become a sort of industry and was no longer a mere profession. Situations, therefore, cannot be ruled out where, he gave the example, that land may exclusively belong to one man and tubewell may similarly exclusively belong to another, and both may be in this way, running the industry of agriculture on such terms and conditions as may be suitable to them. It is true that the wording of classes (1) and (ii) of sub‑para. (2) of para. 8 is vitally different which does lave a scope for the argument which has been advanced by the learned counsel for the petitioner, but we think, we need not enter into the details of the aforesaid hypothetical example where land exclusively belongs to one individual but tubewell exclusively to another and would prefer to confine ourselves to the facts and circumstances of the present case leaving the hypothetical example for answer on some other more appropriate occasion and in some more relevant or suitable case. Proceeding with the facts of the present case in which shares in the tubewell are to be regulated by and are to be in accordance with or dependent upon the shares in the site, we have to point out, that before a person can claim benefit of retaining an additional area on account of a tubewell be has to establish that the tub ;welt was installed on 'his land. The word `his', it will have to be conceded, has` reference to the ownership of that bit of land where the tubewell is installed. If the ownership has no relevancy, as was being argued, to the tubewell itself it certainly has relevancy to the land on which it is installed. The question, at this stage, which then directly emerges is, whether the ownerships should be exclusive or a joint ownership is also acceptable in this context. In our opinion the matter was not free from difficulty and lot could be argued on both sides, though we may say that prima facie the context appeared to be inclined more towards exclusive ownership. In subpara graph (8) of paragraph 4 of M. L. R. 115 it is laid down that "where any matter is not provided for in this Regulation or any difficulty arises in giving effect to the purposes of this Regulation, a Commission may, with the approval or on the direction of, the President, make such provisions in respect thereof as it thinks fit, or as may be directed by the President, and such order shall be deemed to form a part of this Regulation and have effect accordingly". Realising the difficulty which has hereinbefore been mentioned the Punjab Land Commission with the approval of the President on 9‑6‑1972 issued a Notification bearing No. DSH 788/72/2328‑LC (IT), which was published at page 655 of the Punjab Gazette. Part I, dated 23 6‑1972, which reads as follows: "In exercise of the powers conferred on it under paragraph 4 (8) of Martial Law Regulation 115, as amended the Punjab Land Commis sion, with the previous approval of the President, is pleased to direct that in case o joint owners of a tractor‑tubewell the benefit of 2,000 produce Index Units shall be distributed in accordance with the recorded share in the tractor/tubewell and in case there is no such recorded share, the joint owners shall be asked to establish their respective shares and the Additional 2000 Produce Index Units shall be divided on that basis." The Land Reforms authorities decided the present case in accordance with aforesaid Notification and it has not been shown to us that their ultimate orders in this respect suffered from any defect It i9 a common ground that on 20‑12‑1972 (which is the date with reference to which the installation of a tubewell is to be taken note of in this case) the petitioner had on 7/24 share in the site/tubewell and as such Land Reforms authorities were justified in fixing his entitlement for additional area in proportion to that share.

7. When confronted with this situation, learned counsel for the petitioner argued that even though the other heirs of Pir Hayat Shah surren dered their shares in favour of the petitioner after the promulgation of M. L. R. 115 "at the time of filing declaration" (which from Annexures 'F' and `G' appears to be 20‑5‑1972) in law there was no bar to such a surrender and the Land Reforms authorities acted without lawful authority in not recognising the same and in not considering the petitioner as a full owner of the tubewell. If the matter is examined in a little detail we feel this apparently attractive argument cannot be given effect to. One of the heirs wag Naeem‑ud‑Din Shah, elder brother of the petitioner. Admittedly, he is also a declarant whose land at the relevant time exceeded the permissible limits of 12000/14000 Produce Index Units. It he made any transfer (by C way of surrender or otherwise) of his share in the bit of land over which tubewell is installed the same being void cannot be given effect to in view of Paragraph 7 (i) (a) of MLR 1:15 it is laid down that "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 twentieth 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 units (calculated on the basis of classification of soil as entered in the Revenue Records for Kharif 1969 and Rabi 1969‑70), which ever 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 Sub‑Paragraph (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. It has neither been shown as to how could have Naeem‑ud‑Din Shah effected such a transfer after the aforesaid target date and nor was any effort made to bring his case within the "proviso" to Paragraph 7 (1) (a) before us. In that view of the matter, the Land Reforms authorities were quite justified in ignoring the alleged transfer from the share of one brother to another.

8. Taking the case of the ladies, no doubt none of them was declarant but it has not been satisfactorily shown to us as to how could have they by transfer on 20‑5‑1972, increased the holdings of their brothers who already were owning and possessing land beyond 12000/14000 Produce Index Units. The only reply of the learned counsel for the petitioner was that installation of a tubewell may have to be established on 20‑12‑1971, but the law did not stop the increase in the share of a joint owner for instance by succession or other modes of devolution or transfer, and if subsequent to 20‑12‑1971, but before any declarant is asked to surrender any excess area, his share in a tubewell has undergone an Increase the same cannot be ignored. Since the present case is not of an increase in the share of an heir by succession, therefore, we keep the same out of our consideration for the present. However, confining ourselves to increase in share by way of a private arrangement (i.e., the alleged surrender by other family members) we may note that the petitioner already possessed land beyond 12000/14000 Produce Index Units permissible under sub‑paragraph (1) of paragraph

8. Any further addition into his ownership could not be made as it is clearly laid down in the aforesaid Paragraph (to excuse repetition) that "save as otherwise provided in this Regulation no person shall, at any time, own or in any capacity possess land in excess of one hundred and fifty acres of irrigated land or three hundred acres of unirrigated land, or irrigated and unirrigated land the aggregate area of which exceeds one hundred and fifty acres of irrigated land (one acre of irrigated land being reckoned as equivalent to two acres of unirrigated land), or an area equivalent to twelve thousand Produce Index Units of land, whichever shall be greater." This paragraph came into force on 11‑3‑1972 and if thereafter the petitioner acquired any further area (however small) by means of surrender from other family members he could not own or possess the same, the Land Reforms authorities, therefore, acted rightly when they refused to take . notice of the alleged surrender by other family members (male or female) in favour of the petitioner. No doubt sub‑paragraph (i) of paragraph 8 is prefixed with the sentence "save as otherwise provided in this Regulation" but, learned counsel could not show which other provision of M L R 115 provided otherwise so as to cover a situation of the present kind. Coupled with this is sub‑paragraph (2) of Paragraph 8 which authorities a declarant to retain certain additional area "out of the area of land he was holding immediately before the commencement of this Regulation" and is a pointer towards the fact that it is only that holding of the declarant which was with him on 10‑3‑1972‑(11‑3‑1972 being the date of the enforcement of the Regulation) and not a holding which may have increased by transfer after the commence ment of the Regulation, with reference to which additional area has to be worked out rateably or otherwise on account of a tubewell. The holding of the petitioner on 10‑3‑1972 comprised only inter aria of 7/24 share in the tubewell and the land underneath it. It is that holding which is to regulate his entitlement and not a holding which was allegedly increased up to full ownership in the tubewell or its site on 20‑5‑1972. The word "his land" in clause (ii) of sub‑paragraph (2) of paragraph 8 thus refers to that sharLlt which a declarant had on 20‑12‑1971 and not subsequently due to any‑ further transfer in his favour.

9. It is to be pointed out that apart from the above legal aspect, even on factual plane the Land Reforms authorities did not believe that both the brothers had a joint share in the tractor and that it was in exchange for that, that the elder brother surrendered his allegedly half share in the tubewell in favour of the younger brother and the younger brother surrendered his share in the tractor. The finding of the Land Reforms authorities, however, is that the tractor belonged exclusively to the elder brother which is a finding of fact based on the attending relevant evidence and it is not possible for us to disturb the same in exercise of our jurisdiction under Article 199 of 1973 Constitution. That finding thus gives a serious jolt to the various chains of surrender‑story regarding shares in tubewell which must collapse eve$ on the factual plane.

10. No other point was argued before us.

11. The result is that this petition has no merit and is hereby dismissed leaving the parties to bear their own costs. S. A. H. Petition dismissed.