P L D 1973 Lahore 264 (PLP)

I have seen various files of the department and I find that in the 21st Meeting of the West Pakistan Land Commission held on the 5th May 1960 it was decided that the State agriculture land resumed from lessees, grantees, allottees and purchasers of land on Installment basis should be disposed by the C. L. C. in accor dance with the principles laid down by the Commission. It was also decided in that meeting that the State land should be given to the tenants at reasonable market rate to be worked out for each area. On the 4th of January 1964 however the West Pakistan Land Commission with the concurrence of the Government of West Pakistan framed a scheme for the disposal of State land resumed under the Martial Law Regulation No.

64. Land in the scheme was defined as State land and jagir land for which no compensation is payable resumed under the West Pakistan Land Reforms Regu lation, 1959. The perusal of the sale scheme as well as the scheme for the sale of the State land would show that there Is no difference so far as the disposal of the land under both the schemes is con cerned. Under both the schemes land is first to be offered for sale to the tenants who have been in actual cultivating possession in Kharif 1958 and Rabi 1958‑

59. The question which falls for determination is whether in view of the definition of land as given in the regulation itself and paragraph 19 of the Regulation which makes it compulsory for the Land Commission to offer for sale all land resumed under the Regulation first to the tenants, the allotment and transfer of 4516 acres resumed from the B. C. G. A. to West Pakistan Agriculture Development Corporation In the year 1962 is legal. The views of the West Pakistan Agriculture Development Corporation as also the views of the Land Commission are not being reproduced hero but are being attached for your reference. Annexure I and Annexure

11. It is quite clear from the perusal of the definition of a person in the Martial Law Regulation itself that the Government is not a person within the meaning assigned to ft by the Regulation and secondly no local authority or a body incorporated by a Central or Provincial Act can be a person within the meaning of the regulation as they are being expressly excluded. If we assume that the Government is a person within the meaning of the phrase then absurd results are likely to follow because in view of pare= graph 8 even the Government will also have to surrender land in excess of thirty‑six thousand produce index units which obviously can never be the Intention of the Legislature. As corporate bodies have been expressly excluded therefore the land resumed can never be transferred to them because they are not a person within the meaning of the Regulation. I find from the note of the Land Commission that they are also in agreement with this view but they have justified the transfer of this land to the West Pakistan Agriculture Development Corpora tion on the ground of public purpose. I however do not agree with this view. All land resumed under the Martial Law Regulation No. 64 whether it be a proprietary land or State land Is to be disposed of under paragraph 19 of the Scheme. This was the only intention of the law‑maker. Even the Land Commission was at fault when they did not include the State land in the definition of land in the sale Scheme but it appears that later on this mistake was rectified by framing a new scheme in the year 1964. According to this scheme the State land resumed under the Martial Law Regulation No. 64 is to be disposed of in accordance with the provisions of paragraph 19 of the Regulation. The view expressed by Mr. B. G. N. Qazi as referred to above are based on assumptions and contains no reasons. I am not in agreement with his views. If the intention was that the State land which was also owned by the State and which reverted to the State should not be disposed of under Martial Law Regulation No. 64 then there was no necessity to frame the Scheme in the year 1964 because the Government could in individual cases decide as it considered fit and expedient. All land which is resumed under the regulation becomes a part of that pool which is to be disposed of under paragraph

19. Nowhere in the regulation it is indicat ed that the State land resumed under the regulation will not be under the control of the Land Commission for disposal in accor dance with the regulation or that either the Government or the Land Commission have with regard to State land powers to dispose It off otherwise then under paragraph 19 of the Regulation. In this view of the matter the original transfer of land by the West Pakistan Land Commission to the Agriculture Department was illegal and against the provisions of the Regulation. The justification offered by the Land Commission that it was done in the public interest for a public purpose has no force in it because the Martial Law Regulation does not confer any power on the Land Commission to dispose of land for any public pur pose against the mode determined under paragraph 19 of the Regulation. If the Government or the Land Commission insist on having such powers then I am afraid the law as it stands to day does not empower the Land Commission to act in violation of the Martial Law Regulation. As I am to address the Court on the legal issue I would also like to know the views of the Provincial Government and may also place them before the Court if desired by it. (Sd.) M. B. Zaman, Advocate‑General, Punjab 19‑3‑1971.

9. To make the case more difficult for the Court the Law Department this time has agreed with the report of Mr. M. B. Zaman by writing the following letter on 29‑3‑1971: To The Advocate‑General, Punjab. Lahore. Memo. No. OP‑15(49)/71/1114. Dated Lahore the 29th March 1971. Reference your letter No. 1757‑A. G., dated 19th March 1971.

2. The comments of the learned Advocate‑General, Punjab In his note dated 19‑3‑71 have been thoroughly considered in the Law Department. The legal position stated therein appears to be correct and in consonance with the views expressed by the Law Department in its Memo. No. OP‑15(181)/0/7235, dated 4‑12‑1969.

3. It may be added that the scheme formulated by the West Pakistan Land Commission and notified in its Notification No. DSL‑II‑1714‑63‑91‑LC, dated 4‑1‑1964 was framed under paragraph 19 read with paragraph 4(5) of the West Pakistan Land Reforms Regulation, 1959 and as such it forms part of the said Regulation within the meaning of paragraph 4(5) ibid. The copy of Law Department's previous advice referred to above h forwarded herewith for perusal. (Sd.) Abdul Majid Tiwana, Deputy Secretary, Law Department II for Secretary to Government of Punjab.

10. The letter dated 4‑12‑1969 referred to in the above letter itself reads as follows: ‑ No. OP. 15(181)/69/7235 Government of Pakistan Law Department, dated 4‑12‑

69. From The Secretary, to Government of West Pakistan, Law Department. To, The Secretary West Pakistan Land Commission. Sub:‑Competency of the West Pakistan Land Commission to dispose of State land which was resumed from Eksalo lessees under the West Pakistan Land Reforms Regulation, 1959. ‑ Reference your letter No. DSI‑I‑1578‑69‑7935‑L.C., dated 29‑11‑1969. The instant reference arises out of controversy between the West Pakistan Land Commission and the land utilization depart ment over the disposal of State land resumed by the operation of the West Pakistan Land Reforms Regulation, 1959. The precise question regarding which Law Departments advice has been sought is as to whether the State Jagir land which was resumed from Eksalo lessees under the West Pakistan Land Re forms Regulation, 1959 should be disposed of by the West Pakistan or the Land Commission permanently under the requisition or the Commission is empowered only to arrange for its temporary disposal for the unexpired period of lease and there after it has to revert to the General pool of the State land under the charge of the Land Utilization Colonies Department for utilization according to their schemes. Eksalo lessees in the former Sind Province are certainly not tenants within the meaning of clause (14) of section 3 of the repealed Sind Land Revenue Code, 1897, because the term tenant contained therein does not include a lessee holding directly under Government such Eksalo lessees therefore fall within the term occupant as contained in clause (16) of section 3 ibid. According to paragraph 2 (7) of the West Pakistan Land Reforms Regulation owner includes an occupant as defined in clause (16) of section 3 of the Bombay now Sind Land Revenue Code, 1897. By virtue of paragraph 8 of the Land Reforms Regulation limits on individual holdings have been placed and it has been provided that no person could own or in any capacity possess land in excess of the areas as described in this paragraph. According to Paragraph 16 of the Regulation land in excess of the area permissible for retention under paragraph 8 ibid is to vest in and to be resumed by Government free from any encumbrance or charge. It may be noticed that but for the operation of the Land Reforms Regulation the State land in possession of Eksalo Lessee would have also reverted and vested in Government after the expiry of the lease period. By the operation of the Regulation also it has vested in Government as envisaged in paragraph 16 of the Land Reforms Regulation. To this extent therefore there is hardly any occasion for controversy between the Land Commission and the Land Utilization Department. As regards the disposal of such land paragraph 19 of the Land Reforms Regulation provides the procedure for the sale and utilization of resumed land. This procedure envisages that the disposal of resumed land would be on such terms and conditions as may be considered suitable by the Commission. It is also noteworthy that according to paragraph 3 of the West Pakistan Land Reforms Regulation the provision of this regulation override all other laws. The Land Commission has already issued instructions for the disposal of resumed State land and the same are contained in paragraph 177 of the Land Reforms Manual, Vol. I. Again it appears from Notification No. DSL‑II‑1714‑63/91‑LC, dated 14th January 1964 that the Land Commission prescribed the Scheme with the General concurrence of the West Pakistan Government Revenue Department for the sale of State land and jagir land for which no compensation is payable resumed under the West Pakistan Land Reforms Regulation. The controversy should have come to an end when the Governor of West Pakistan was pleased to accept the proposal of the Board of revenue for the disposal of State land resumed under Martial Law Regulation No. 64 by the Chief Land Commissioner in accordance with the directive of the West Pakistan Land Commission as appears from Memo. No. S. O. Col IV‑I(B)/5‑61, dated the 28th February 1961 from the Secretary to Government West Pakistan Revenue and Rehabilitation Depart ment to the Secretary (Colonies), Board of Revenue, West Pakistan. In the light of what has been said above the Land Commission's view in the matter as stated in the letter under reference appears to be correct inasmuch as the State/Jagir land resumed from Eksalo lessees under the West Pakistan Land Reforms Regulation, 1959 should be disposed of by the West Pakistan Land Commission under the Regulation. (Sd.) Secretary to Government West Pakistan Law Department.

11. A perusal of the material reproduced above would highlight the point in controversy and that is as to whether the land in dispute was such which was liable in the first instance to be offered for sale to the relevant sitting tenants as contemplated in paragraph No. 19 of the Regulation.

12. We wanted to know as to whether Provincial Government as such agreed with the latest opinion of the Law Department and the Advocate‑General but we were told by the learned counsel for respondent No. 4 that the aforesaid views were not acceptable to their clients. We therefore proceed to express our own views and record our own findings in the matter. 13. (a) The questions to be determined are :‑ (i) as to which type of land are liable to be resumed by and vest in the Government under the Regulation (ii) and for this purpose who is the person whose land is to put it differently to be finally expropriated ; we may give here an example to make our approach little more clear. Suppose there is a lessee named X of a landlord named Y. The entire holding of Y is very small and is not liable to be hit by the regulation but the total land in occupation of X is far beyond that. X gives up that area which was on lease with him so as to keep his estate within the permissible ceiling. In this context the leased land was liable to be and will always be considered as belonging to Y so as to find out as to whether it was to be expropriated to the Government or not. If the holding of Y including this land was quite small it is obvious that the land mentioned in the example is neither to be resumed by nor vest in the Government. This will show that vesting in Government is only of that land which its real owner cannot retain or own and which is beyond his permissible ceiling. If the land is in excess of the permissible ceiling of the lessee the tenant or similar other holders of limited or intermediary interests then so far as the said lessee tenant or intermediary interest‑holder is concerned he may not be permitted to possess the same but this does not moan that the true owner to whom the real corpus of land belongs will also be deprived of the same even if his total holding is quite within the permissible ceiling. (b) It will have been appreciated by now that we are concerned with a type of case where possessor of land is one person while the owner is another. Where possessor and owner is one and the same person no difficulty arises. It is only in cases of divided rights that some confusion may apparently crop up but on closer scrutiny that also can be resolved. In the earlier example we explained the point with reference to an owner whose total holding was not so big as to be hit by the regulation. In that situation we have demonstrated that his lessee may not be able to retain the involved area but the owner may retain the same. This is from the point of view of the size of the total holding of the real owner. Going a step further in some cases the very regulation may not as such be applicable to him. There again the lessee if he has large areas with him may not retain any particular land but the owner may do so on account of there being no embargo on him. We can here quote a practical example of a local authority. In para. 8 of the Regulation to excuse a little repetition it is written that no person shall own or in any capacity possess land beyond a permitted ceiling. In the definition of the word person as given in para. 2(8) of Regulation a local authority does not fall. It means that though lessees of a local authority may be hit by the Regulation but the local authority itself will not be and when the lessees will surrender any area hold on lease by them the leases will come to an end and the land which b; longed to the local authority will continue belonging to or be owned by it. Merely because It was not allowed to be possessed by the lessee will not mean that it will be resumed by or vest in the Government so long as any other person namely the owner is there to retain it up to any limit. (c) Coming now to the case in hand and to remain consistent we have therefore to hold that the Provincial Government does not come within the mischief of para. S of the Regulation inas much as it is neither included in the definition of the word person nor even otherwise there appears to be any prohibition on the extent of its holding. This aspect of the matter was not taken exception to by any of the parties to this case. This will show that when a lessee surrenders any area of State land leased out to him the lease will come to an end and the land will continue to belong to and be owned by the Provincial Government (hereinafter called the State) just like any other owner. The status of the owner that is the Provincial Government in this case is such that no calling limit applies to it and from that point of view the question of applying para. 16 of the Regulation does not arise because as we have demonstrated earlier that applies only where the owner (as distinct from the lessee) cannot retain that land. (d) When confronted with this situation learned counsel for the petitioners referred to Jagir land and submitted that too being a State land if the same could be utilised for transfer to sitting tenants why could not land leased out by State be similarly utilised. The word Jagir is defined in para. 2(4) of the Regulation and reads as follows: ‑ "(4) Jagir includes‑ (a) any grant of land by way of Jagir. (b) any grant of money made or continued by or on behalf of the State which purports to be or is received out of land revenue. (c) any assignment or release of land revenue. (d) any estate in land created or affirmed by or on behalf of the State which carries with it the right to receive or collect land revenue or any portion thereof. (e) any assignment of dues recoverable but for such assignment by Government." The provisions regarding Jagir land are then contained in para. 21 which reads as follows:‑ "

21. Jagirs.‑(1) All Jagirs of whatever kind and by whatever name described subsisting immediately before the commencement of this regulation shall on such commencement stand abolished and save as hereafter In this paragraph provided any right interest or estate granted, assigned, released, created or affirmed by any such Jagir shall revert to Government free from any encumbrance or charge and no compensation shall be claimed by or paid to any person affected thereby." (2) If a Jagir is wholly or partly in the form of a grant of land the person in favour of whom the Jagir subsisted shall be entitled to retain as full owner the whole of such land if the area together with any other area which he may own or possess in any other capacity 9s equal to or less than five hundred acres of irrigation land or thirty‑six thousand produce index units whichever is more and if the area exceeds that limit then such portion not exceeding the limit as he may select and the excess land shall revert to Government free from any encumbrance or charge without payment of any compensation and shall be disposed of by the commission in the manner provided by or under this Regulation. (3) Land retained under sub‑paragraph (2) shall be subject to the same assessment of land revenue water rate and other dues as land of similar nature in the vicinity. (4) If any such relative or dependent of a person in whose favour a Jagir in the form of a grant of land subsisted as was receiving from such person maintenance in the form of money or otherwise is as a result of the operation of this regulation left without any land or other source of income the commission may on such terms and conditions as may be prescribed provide him without any payment with an area of land not exceeding the area of subsistence holding. (5) If Government considers it necessary so to do in public interest it may subject to such conditions as it may deem fit to Impose grant to a religious. charitable or educational institution in whose favour a Jagir subsisted a monetary grant for a specified purpose to be used in the prescribed manner. (6) No Jagir shall be created after the commencement of this regulation." If these provisions are carefully studied they will show that the very fact that Jagir land has been specifically dealt with means that probably it was not covered by paras. 8, 14, 16 and 19 (so far as the ownership of the State was concerned) and that is why special provision had to be made for the same. In para. 2(7) of the regulation the word 'owner' is defined as follows:‑ " 'Owner' includes an occupant as defined in clause (16) of section 3 of the Bombay Land Revenue Code, 1.879 (Bombay Act V of 1879)." In the Bombay Land Revenue Code (Act V of 1879) the word `occupant' is defined in these terms in section 3(16): "'Occupant' means a holder in actual possession of un alienated land other than a tenant: Provided that where the holder in actual possession is a tenant the landlord or superior landlord as the case may be shall be deemed to be the occupant." In the same Code 'alienated' is defined in section 3(20) as follows:‑ "'Alienated' means transfer in so far as the rights of the Provincial Government to payment of the rent or land revenue are concerned wholly or partially to the ownership of any, person." In section 3(14) of the Code the word 'tenant' was defined at, below:‑ "'Tenant' means a lessee whether holding under an instrument or under an oral agreement and includes a mortgagee of a tenants right with possession but does not include a lessee holding directly under the Crown." If all this material is kept in view it will mean that only an, occupant of un alienated land was included in the word `owner'. Occupant of alienated land was not included in that term. Alienated land as this definition will show was more or less the same thing as a Jagir. Compare the definitions of both these words. To bring Jagir within the scope of the Regulation therefore special provision was made for it in para. 2 and in this context the point raised from the point of view of Jagirs or Jagir land goes against the petitioner instead of favouring them. Again even though Jagir land may also be a State land but while abolishing Jagirs the terminology employed in para. 21(l) was all Jagirs shall stand abolished and any right interest or estate granted, assigned, released, created or affirmed by any such Jagir shall revert to Government. In sub‑para. `2" of para. 2 then it was stated that if a Jagir is wholly or partly in the form of a grant of land the person in favour of whom the Jagir subsisted shall be entitled to retain as full owner the whole of such land: if the area together with any other area which he may own or possess in other capacity is equal to or less than 500 acres of irrigation land or 36,000 P. I Units whichever is more and if the area exceeds that limit then such portion not exceeding the limits as he may elect. It was further laid down in the said' paragraph and the excess land shall revert to Government free from any encumbrance or charge without payment of any compensation and shall be disposed of by the commission in the,, manner provided by or under this regulation. This shows that the Legislature was aware of land having been given in various shapes and forms to various persons e.g. on leases or as Jagirs or as grants under various schemes under the Crown Grants Act or the Colonization of Government Land Act etc. All such land if found in excess with them was to be surrendered by the possessors thereof but out of those only Jagir land reverting to the Government was placed at the disposal of the commission and not other State land. It is right juncture to point out that it was for this purpose when the sale Scheme B was earlier promulgated (See Appendix XXI, pages 405‑4141 Volume I of the Land Reforms in West Pakistan) that land was defined therein as land other than State land but including Jagir land resumed under Martial Law Regulation No.

64. This was quite consistent with the view which we are taking that paras. 8, 14, 16 and 19 did not apply to State land which could be owned by the State to any extent and which was neither to be surrendered by it nor could it be held as excess land with any person. With great respect we therefore do not agree with the comments of the learned Advocate‑General that this definition of land was not consistent with the definition of land as given in the main regulation. According to us rather it was quite within the scope of the relevant provisions in that behalf and was so drafted with meticulous care: (e) Land in the Province of West Pakistan may sometime be the ownership of the province or sometimes of the Central Government. In cases where the land belonging to the Central Government was for instance on lease with a private lessee the same on surrender by the lessee according to para. 16 read with the definition of the word 'Government' in para. 13) of the Regulation was to be resumed by and vest in the Provincial Government. This according to us neither was nor it could be the intention of the Legislature. The Central C Government being the owner and its right to own and hold land being unlimited such a surrendered land could not be considered as excess with it in any manner and therefore could not become the property of the Provincial Government in the same manner as the land of a local authority could not. This too shows that State land (save Jagir or Jagirs land) was not within the mischief of the Regulation for the purpose under discussion. (j) The terminology employed in paragraph No. 16 of the Regulation to the effect that excess land "shall vest in and be resumed by the Government" cannot in the very nature of things apply to land which already belonged to the Government because you cannot vest a property (twice) in an owner when it already belongs to and vests in him the terminology shows that it was used with regard to such land which already did not vest in the Government that is other than the State land. This terminology may be compared with para. 21 about Jagir and Jagirs land where recognising the fact that the Jagir land may already belong to the Government it was said that "the excess land shall revert to the Government"‑and not that it shall vest in the Government because vesting it already may be. (g) State land was not a res nullius so that after surrender by a lessee it belonged to nobody prior to surrender by the lessee and even afterwards it always belonged to the State concerned. The State as is a common ground was not within the mischief of para. 8 of the Regulation and from that point of view the question of applying the rest of the provisions of the Regulation to it does not arise as such Paragraph 17 contemplates that when land vests in the Government it shall have to pay compensation to him from whom it was taken obviously Government could not pay compensation to its own self. This also shows that the idea of vesting its own land in the Government was beyond the intention of the relevant law‑giver and except Jagir or Jagi land no other State land was to be within the scope of the Regulation so as to authorise its disposal by the Land Com mission or its functionaries. What we intend to indicate is, that for disposal under the Regulation land could not only be such which its possessors for the time being could no longer possess, but should also be such which its owner too could not own any more. State land does not fulfill this later qualification. For our purposes we would therefore like to divide the process of expropriation to three parts as follows:‑ (i) First is to examine who is the possessor of the land and how much land in his overall capacity he possesses. If the land in his possession exceeds the permissible ceiling the excess has to be abandoned by him. This should be called the state of abandonment by the possessor. (ii) Second is to see who is the owner of that land. If he was the possessor himself the position does not involve any further complications and the land vests in the Government. (iii) If the owner is some other person, body or authority different from the possessor then before the land can vest in the Government we have to see as to whether its owner falls within the category of those who cannot own or possess more than a particular ceiling. If not the stage for taking land from him or divesting him from the same and vesting it in the Government does not arise. It is only such land of which owner is divested which is to be resumed by the Government and not merely that land of which a possessor simplicitor is asked not to keep it in his possession any more. (h) Learned counsel for the petitioner referred to paragraph 4 of the Regulation which reads as follows:‑ Constitution of Land Commission and its powers.‑(1) For carrying out the purposes of this regulation a commission to be called the West Pakistan Land Commission shall be con stituted consisting of the Governor of West Pakistan who shall ex officio be its Chairman and not more than five members to be appointed by him. (2) The Commission shall have all the powers necessary for the implementation of this Regulation. (3) The Commission may nominate one of its members to be the Chief Land Commissioner who subject to such direc tions as may from time to time be given by the Commission shall be responsible for the implementation of this Regulation. (4) The Commission may set up organizations and appoint officers, authorities and persons and confer powers on and assign duties to them. (5) Where any matter‑is not provided in this Regulation or any difficulty arises its giving effect to the purposes of this Regulation, the Commission may by order notify in the official Gazette make such provision in respect thereof as it thinks fit and such order shall be deemed to form a part of this Regulation and have effect accordingly. (6) Where any dispute arises in carrying into effect the provisions of this Regulation such dispute shall be referred to the Commission whose decision thereon shall be final. After quoting the above paragraph learned counsel then referred to the State Land Scheme the preamble of which is to the follow ing effect :‑-- DS L‑II‑1714‑63/91‑LC. In pursuance of the provision of paragraph 19 of the West Pakistan Land Reforms Regulation, 1959 and in exercise of all powers enabling it in this behalf including the powers conferred on it under para. 4(5) of the aforesaid Regulation the West Pakistan Land Commission is pleased to prescribe with the general concurrence of the West Pakistan Government Revenue Department the following Schemes for the sale of the State land and Jagir land for which no compensation is payable resumed under the aforesaid Regulation. He submitted that since the State Land Scheme had been prepared under overall powers of the Land Commission therefore it was to be considered as a part of the main Regulation itself and if in the main Regulation there existed any lacuna or doubt on the subject in hand the same should be considered to have been filled up by this Scheme. On this basis it was submitted that the claim of the petitioners for transfer of the land in question merited acceptance. We are afraid we cannot accept this contention. The powers of the Land Commission extend to land which is in excess with any owner. In the instant case it cannot be said that the land involved herein was beyond the capacity of the Provincial Government which was the true owner thereof. From that point of view the State Land Sale Scheme cannot cover this land and we cannot Issue any direction to the Land Commission or its functionaries to give it to the petitioners after snatching it from its true owner from whom the Land Commission itself has no authority to take away the same.

14. This judgment is being written in W. P. No. 15311 of 1965 but actually it is intended to dispose of three other writ petitions namely W. P. No. 1532/65, 1533/65 and 1349/65 the petitioners wherein also lay claim to the land which was on lease with the B. C. G. A.

15. We hope we will not be considered disrespectful if we say that after re‑examining the matter in greater details we have reiterated the same view which was expressed by Shabir Ahmad and J. H. Rizvi, JJ., on ?0‑10.60 in W. P. No. 448 of 1960 and in all humility we sincerely regret that the latest opinion of the learned Advocate‑General for whose legal acumen we have always had great regards and the recent concurrence thereto of the Law Department have not appealed to us to be correct.

16. For the reason given above all the writ petitions herein before mentioned have no merits and are dismissed. Since the Land Commission has been shifting position at various stages there shall be no order as to costs. Petition dismissed.