P L D 1975 Lahore 417 (PLP)

K. M. A. SAMDANI, J.-The petitioners Ch. Abdul Aziz and Mst. 3harifa Begum are husband and wife. Petitioner No. 1 Ch. Abdul Aziz is a declarant under the Land Reforms Regulation, 1972 and also a retired Government servant. He inherited 231 kanals 11 marlas of land in 1938-39 from his father, 10 kanals 10 marlas of land in 1954 from his sister and 12 kanals 8 marlas of land in 1956 from his mother i.e a total of 254 kanals 9 marlas equal to 31.2 acres all in Chak No. 16/8, B. R. in Tehsil Khanewal, District Multan. In terms of the inherent worth of the land, it amounts to 2312 produce index units. Then after obtaining permission from the Government he sold this land to two different sets of purchasers for a sum of Rs. 1,04,949 by means of two mutations both attested on the 27th of June 1964. With this money be purchased land in Tehsil Rajanpur of District Dera Ghazi Khan by means of five different mutations whose numbers, dates of attestation, the areas involved in the transactions and the amounts of consideration are given in the following table :- S. No. No. of mutation. Date of Area Consideration. attestation. 1. 984 24-9-1964 800 kanals Rs. 36,000 2. 990 700 Rs. 31,500 3. 991 350 Rs.16,000 4. 992 800 Rs. 36,000 5. 1032 5-6-1965 100 Rs 4,4000 Total ... 2750 kanals Rs. 1,23,900 The land thus purchased measures 344 acres equal to 2750 kanals. It may also be noted here that petitioner No. 1 had to contribute Rs. 18,950 in addition to the amount fetched by his inherited land in order to purchase these 344 acres in Rajanpur. Since all these purchases were made between the 1st of January 1959 and before the retirement of the declarant, it was held by the Land Commission authorities that he came under the purview of sub-para, (1) of Paragraph 10 of the Land Reforms Regulation which reads as follows :- "No person who is or has been in the civil service of Pakistan and has at any time between the first January 1959, and two years of his ceasing to be in civil service acquired any land or any right or interest therein, by any means whatever, ether in his own name or in the name of any of his heirs or any other person, shall own or possess any land exceeding one hundred acres." But in view of the proviso to the said paragraph they not only allowed him 100 acres of land permissible under the said sub-paragraph but also let him retain 31.2 acres of additional land in lieu of his inherited land. For the convenience of reference the proviso is also reproduced below "Provided that subject to the other provisions of this Regulation, any such person may, in addition to one hundred acres of land, own or possess any land which has devolved on him by inheritance or any other land, not exceeding the area of the land so inherited, which has been acquired by him, in lieu of the land so inherited, whether by exchange or sale, either in his own name or in the name of any such person." The relevant order of the Deputy Land Commissioner, Dera Ghazi Khan is dated 27th of May 1972. The appeal preferred to the Land Commis sioner, Multan Division, by the declarant was dismissed on the 13th of July 1972 and the revision petition made to the Chief Land Commissioner and the Federal Land Commission were rejected on the 14th of July 1973 and 5th of December 1973 respectively by the Additional Chief Land Commissioner, Punjab and the Chairman, Federal Land Commission. Hence this writ petition in which the learned counsel for the petitioner challenges the manner in which the Provincial and the Federal Land Commissions have interpreted paragraph 10 of the Regulation.

2. The learned counsel contends in the first place that in view of the fact that the land which declarant holds had been acquired in its entirety by him in lieu of his inherited land by sale-purchase, paragraph 10 of the Regulation is not attracted at all to his case. Instead, paragraph 8 should have been applied. According to him, the expression "subject to the other provisions of this Regulation" used in the proviso to sub-para. (1) of para. 10 implies that once the case of a declarant comes under the purview of the said proviso, it automatically attracts the other relevant provisions of the Regulation, namely, in this case, paragraph 8 thereof.

3. We are, however, unable to agree with this interpretation of paragraph 10(1) and its proviso. As to whether a case is to be governed by paragraph 8 or 10 is a question which is determined by the conditions contained in the preamble part of sub-para. (1) of paragraph

10. That is, if the declarant is or has been in the civil service of Pakistan and has at any time between the 1st January 1959 and two years of his ceasing to be in civil service acquired any land or any right or interest therein by any means whatever . . . . his case will undoubtedly be governed by paragraph

10. It must be noted here that paragraph 8 is general provision governing all such persons who own or in any capacity possess land in excess of 150 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 land or an area equivalent to twelve thousand produce index units of land whichever is greater, while paragraph 10 is a special provision which governs exclusively the civil servants who happened to acquire any land or any right or interest therein during the prescribed period. Therefore, a person falling under the purview of the latter may also be hit by the provisions contain in the former if, after applying paragraph 10 his holding still exceeds the limit permitted under paragraph 8, though the converse is not true. For, every civil servant is also a citizen of this country but not every citizen is a civil servant. It is for this reason that the expression "subject to the other provisions of this Regulation" has been inserted in the proviso to sub-para. (1) of paragraph 10, which only means that a declarant civil servant cannot escape the operation of paragraph 8 if after the application of paragraph 10 to his holding, the land allowed to be retained by him thereunder exceeds the limit prescribed in paragraph

8. This expression does not take a declarant civil servant out of the purview of paragraph 10 altogether. Once it is found that he acquired land or any right or interest therein during the prescribed period, he is inextricably caught in the clutches of paragraph

10. It is immaterial as to what means he adopted to make the acquisition. In the present case, it is true that the bulk of the purchase money came from the proceeds of the sale of inherited land but this does not mean that the provisions of paragraph 10 will not apply. It may also be pointed out here as a special feature of this case that at least to the tune of Rs. 18,950, the declarant contributed from his own earnings. Therefore, at least in respect of the land bought with this small sum of money, it cannot be said that it was in lieu of the inherited land.

4. We are, therefore, satisfied that paragraph 10 of the Regulation is squarely applicable to the facts of the present case.

5. The question as to whether paragraph 8 will apply or not, will arise only after the result of the application of paragraph 10 is known. According to paragraph 10(1) the declarant-petitioner cannot own oil possess more than hundred acres but he may be allowed in addition to the said area, an area out of the land acquired by him in lieu of his inherited land, but not exceeding the area of land so inherited. From the plain wording of the provision, it is clear that the equivalence of the land in lieu of the inherited land is to be worked out area-wise and not produce index units-or value-wise. This may appear to be unreasonable but that being the clear intent of the Legislature, the Courts cannot question the wisdom behind the law. They have no choice but to enforce it as it is. Since the declarant inherited only 31.2 acres of land regardless of the District where the inherited land was situate, he is entitled to an additional area of 31.2 acres only again regardless of the District where his present holding is.

6. In our view, therefore, the learned Land Commission authorities rightly allowed the declarant-petitioner to retain only 131.2 acres of land under sub-para. (1) of Paragraph 10 of the Regulation. This decision being based on the correct interpretation of the relevant law cannot be said to be without lawful authority or of no legal effect.

7. The second point for consideration in this case arises out of the fact that the declarant-petitioner has a tube-well installed on his land. So, on account of the tube-well he has been allowed a further additional area equal to 1/6th of the total produce index units of the area of hundred acres allowed in the first place to be retained by him. The authority on the basis of which this additional area has been given is contained in clause (e) of the Punjab Land Commission's Notification No. DSH-854/72/2556-LC(II) dated 26th June 1972. But the declarant-petitioner is not satisfied thereby. His learned counsel contends that an additional area equivalent to two thousand produce index units being admissible on account of a tube well under paragraph 8 of the Regulation, there was no necessity to provide a different measure for the civil servants by a notification. There fore, to the extent of clause (e) the said notification is ultra vires sub-para. (8) of paragraph 4 of the Regulation under the authority of which it is purported to have been issued. But the concession of two thousand produce index units provided in sub-para. (2) of paragraph 8 is obviously meant for those who are hit by sub-para. (1) thereof, that is to say, it is available only to those whom paragraph 8 has to be applied. In the present case, 131.2 acres of land allowed to be retained by the declarant does not exceed the limits prescribed in paragraph

8. Therefore, the provisions of paragraph 8 are not attracted at all and as such the question of granting the concession admissible under sub-para. (2) thereof does not arise. Since there was no other provision in the Regulation whereby a civil servant could be allowed a similar concession on account of a tube-well or a tractor, the Punjab Land Commission considered it fair to provide for the same by a notification in exercise of the powers vested in it under sub-para. (8) of paragraph 4 of the Regulation, the relevant text of which reads as follows :- "Where any matter is not provided for in this Regulation . . . . a Commission may . . ~ . . make such provision in respect thereof as it thinks fit . . . . ."Therefore, clause (e) of the notification is a valid provision and the declarant petitioner can be allowed the benefit only of the said clause and not of sub-para. (2) of paragraph 8.

8. Thus there remains only one more question to be settled before disposing of this writ petition. Petitioner No. 1 i e., the declarant, claims to have made a gift of land measuring 362 kanals 8 marlas to his wife petitioner No. 2 in June 1969 by means of mutation (No. 1365) which was entered on the 5th and attested on the 21st of that month. But the land involved in the gift appears to have been counted towards the holding of the, declarant without any notice to the donee. The donee was not a party before any of the authorities who dealt with this case. As the decision to! include this piece of land in the declarant's holding is likely to affect the rights of petitioner No. 2, we are of the view that she should have been heard in the matter. We, therefore, hold that to this extent the decision of the Punjab Land Commission and the Federal Land Commission is without lawful authority and of no legal effect. We are told that it is also the practice of the Punjab Land Commis sion that all the affected donees, rather alienees of any description for that matter, are invariably issued notice before the validity of the alienations in question is determined. We accordingly remand this case to the Federal Land Commission for a reconsideration of only the question of gift with notice to petitioner No.

2. However, since in this case the date of retirement of the declarant is also in dispute, the Federal Land Commission may, if it thinks necessary, remand the case to the Provincial Land Commission for the decision of the question at any suitable level.

9. The writ petition is otherwise dismissed with no order as to costs. S. A. H. Petition dismissed.