P L D 1966 Supreme Court 604 (PLP)

"We, pointed out to counsel the inconsistencies of his argument, and he explained by saying that they were excusable, because he wanted to meet all possible arguments that could be advanced from the opposite side, and that in doing so, he might appear to be contradicting himself. His attempt may be excusable, but the consequence is that his contentions destroy each other and fizzle away into nothing." The petition for the writ being dismissed, special leave to appeal to this Court was granted on the consideration that it was a matter of public importance whether lakes fell within the ambit of the Regulation. We have heard Mr. Qureshi Mahmud f Ahmad for the appellant, and Mr. Kazi Akhtar Ahmad, Additional Advocate-General on behalf of the Chief Land Commissioner. The point whether lakes fall within the definition of land may be briefly disposed of. Under paragraph 4, sub-paragraph (5) of the Regulation, it is laid down that when any matter arises for decision which is not provided for in the Regulation or any difficulty arises in giving effect to the purposes of the Regulation, the Commission may by notification in the official Gazette make such provision in respect thereof as it thinks fit, and the order it makes will be deemed to form part of the Regulation. This provision may conceivably be thought not to be available by reason of the absence of notification in the official Gazette, but sub-paragraph (6) of the same paragraph is in wider terms, viz., that when any dispute arises in carrying into effect any provision of the Regulation, such dispute shall be referred to the Commission, whose decision thereon shall be final. Here, clearly B a dispute arose as to whether lakes were to be included in the land which Government was entitled to resume under the Regulation, and the decision of the Commission is clear, namely, that it was to be treated as land, and allowed for in terms of produce index units at a certain rate. The point of limitation is also capable of resolution on a simpler basis than that adopted by the High Court. The wording of rule 11 in its relevant part is as follows:- "The Chief Land Commissioner . . . . . may of his own motion or on an application of any party interested made to him in that behalf, within ten days from the date of the order, review, and on so reviewing modify, reverse or confirm, any order passed by himself or by any of his predecessors in office." It should be quite clear from the fact that power is given to the Chief Land Commissioner to interfere in review with an order passed by "any of his predecessors in office" that a limitation of 10 days between the date of the order reviewed and the reviewing order cannot conceivably have been contemplated. It is quite obvious that the period of 10 days from the making of the order is to apply only to the making of an application fo review by an interested party. Therefore, the order of Mr. I. t. Khan cannot be held vitiated on the ground of limitation. But as to the making of a fresh choice, we find it impossible to sustain the decision of the learned Judges, or to approve of the argument by which that result was achieved. The purpose of the writ was to save the lake from being resumed by the Government, and it was open to the party interested to present any grounds upon which, in law, the action of resumption could be thought to be ultra vires. A claim to keep property because it is not affected by the Regulation is not inconsistent with assertion of a right to select it for retention, in case it is held to be so affected. As has been indicated above, Mr. I. U. Khan himself had treated the order of his predecessor as being one allowing the present appellant to exercise a fresh choice. He, however, dealt with the matter as if it lay in the field of exchange of one piece of property for another. If the history of the case of the present appellant had been examined, a different and a clearer view would undoubtedly have been taken. In his applications of the 13th April 1959, the present appellant had expressed a preference for retaining his Jagir land. At that time, no decision had been taken by the Land Commission as to whether Jagir lands were to be allowed to be retained, but when his forms came up for an order by the Deputy Land Commissioner, such a decision had been taken, namely, that a Jagirdar was to place his riyati lands first, and if those were sufficient to make up his units to the ceiling of 36000 p. i. u. he could not retain the Jagir lands. That was the case with the estate of the present appellant, and upon being informed of this, on the 29th June 1959, he submitted a fresh choice. A copy of his schedule of choice has been placed on the record, as Annexure It specified land in six different villages, totalling 36,034 units. It also bare a note which was of the greatest significance for the determination of the question whether he was, in the circumstances then existing, making a choice within the meaning of paragraph 14 of the Regulation, i.e. a final choice which would determine for all time to come what his proprietary interest was to be after the excess calculated under the Regulation had been resumed by the Government, and therefore, totally lost to him. The note reads as follows: "We own lakes in Deh Bahambbani Taluka Sakrand and Deh Fatehpur Jagir Taluka Tando Bago, which cannot be considered as lands. Nor the Government has decided regarding their produce index units. At the time when these questions are decided, we may be given right to retain lakes by way of exchange." It is to be noted that the assertion was still being made that these lakes cannot be considered as lands", but at the same time a further ground was stated, namely, that the Government had not yet decided "regarding their produce index units" The Deputy Land Commissioner on the 30th June 1959, made an order in respect of the lands specified in Annexure `F, but said nothing about the lakes. It was not until September 1959, that the decision was taken to treat lakes as land, and the measure of their valuation was fixed in terms of produce index units. The note does indeed speak of "the right to retain lakes by way of exchange", but in the view that we take, as to what is meant by a final choice under paragraph 14 of the Regulation, j the use of the expression "exchange" cannot determine the relief which the applicant may claim, under law. It is important to note that the new schedule, Annexure `F, was accepted by the Deputy Land Commissioner. This schedule itself constituted the making of a fresh choice in respect of the whole of the applicant's estate, which was necessitated by the fact that under orders made since the time when he presented his original forms, the Jagir lands, which he had originally chosen to keep could not be retained. This was not a matter of mere exchange one property for another. It was a revision of the choice as a whole in respect of the entire estate, and it was allowed by the Land Commission authorities. 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 each category of the land he owns, he cannot be in a position to select the pieces he will retain, nor can he be deemed to have made any choice, so as to produce the effect of finality. The present case is not one where the omission by the Land Commission authorities in this respect came to the notice of the land owner on some date after he had exercised a final choice. Expressly by the note referred to above, he had made it clear that in the event of lakes being treated as land; and upon the fixation of their value in terms of units, he would make a fresh choice. His use of the word F "exchange" in that note does not in our view, detract from that position in any way. He was asserting the right to revise his entire choice in relation to the question of the lakes, in the same way as he had revised the choice in his original forms, on learning that Jagiri lands could not be retained. The first revision was accepted without question by the Land Commission authorities. The question here is whether there was any reason why a similar revision made later for a reason of not less importance, should not be allowed. That revision was allowed by Mr. Ahsanuddin, and in our opinion in doing so, he was doing nothing more than carrying out the requirements of paragraph 14 of the Martial Law Regulation. That requirement is in our view imperative. The selection must be one made by the land-owner himself, subject only to the consideration that he must chooses consolidated blocks of lands. On this point, Mr. Ahsanuddin has clearly stated in his order that by retaining the lake in question, the landlord would "get his existing area consolidated." That condition being satisfied, the selection was entirely at the option of the land owner, and this is wholly reasonable, since it was a case of final expropriation by force of statute. The least that can be allowed in such a case is that the land-owner who is to have his estate substantially reduced by operation of law should be given the unilateral right of choosing all what he will retain. And it is clear that unless he knows what he can and what he cannot retain, and what valuations are set upon the different categories of land which he possesses, he cannot be in any position to exercise that right of final selection. Therefore, in our view, the order of Mr. Ahsanuddin was one made in compliance with an imperative provision in the Regulation itself. That conclusion has a clear effect in relation to the order of I. U. Khan, reversing the decision of Mr. Ahsanuddin. The effect of Mr. I. U. Khan's order is to require the land-owner to retain property out of his estate otherwise than in accordance with his own choice. It is unnecessary to go into the grounds upon which Mr.

1. U. Khan's order proceeded, beyond saying that it makes reference to choice by way of exchange of particular properties being confined to the same village, i.e. to the facility of exchange, which is not equivalent to the major right of choice given by paragraph 14 of the Regulation. A point was raised before us by the learned Additional Advocate-General as to the difficulty which might arise on account of the Government being owner of a share in the lake. There is on the record a copy of a judgment and decree obtained in 1957 by the land owner, declaring certain orders made by the Government in respect of this lake to be illegal and void, and restraining the Government "from interfering directly or otherwise with the rights of the plaintiff over this lake called Dhand Bhand Khatian." It seems that some part of the lake is "Na-Kabuli land" as to which the Civil Court pointed out that the present appellant had a preferential claim. Any controversy as to the rights that the Government and the appellant respectively may exercise in respect of the lake would be in the nature of ordinary disputes over Civil rights, which are capable of resolution by the various methods known to law. The mere fact that such resolution may be necessary is by no means a determining factor as to the right of choice of a land-owner under paragraph 14 of the Regulation. 'The Regulation itself in paragraphs 23 and 24 makes provision for partible and impartible joint holdings, and these, if relevant, may be brought into operation. At any rate, the presence of these paragraphs in the Regulation is sufficient ground for holding that the existence of joint rights in respect of land falling within the Regulation is not a factor operative against the right of choice given by paragraph

14. As a result of the above discussion, we are satisfied that the order of Mr. I. U. Khan is not one than can be made within the powers given by the Regulation. By paragraph 27 of that Regulation, it is provided that no order made thereunder shall be called in question in any Court including the High Court and the Supreme Court. The words are not "any order purporting to be made", but "any order made" and therefore the require ment is that any order in respect of which immunity may be claimed under paragraph 27 must be an order made in accordance with, the Regulation in its relevant provisions. Before the 7th June 1962, there were in force certain Martial Law Regulations which had effect to save actions of e.g., the 1 Land Commission authorities, which merely purported to be made under the Regulation, even though not in compliance with its relevant provisions, but these Regulations ceased to have force on the promulgation of the present Constitution, and the bar of jurisdiction under paragraph 27 was limited thereafter to orders which were in substance and form made in compliance with the Regulation. Therefore, the High Court had jurisdiction under Article 98 of the Constitution to declare that the order of Mr. I. U. Khan was made without lawful authority and was therefore of no effect. For these reasons, we allow this appeal with costs, and reversing the decision of the High Court, we grant the appellant a declaration that the order made in review in his case, by Mr. I. U. Khan on the 31st July 1962, was made without lawful authority, and consequently is void and of no effect. A. H. Appeal allowed.