P L D 1966 Supreme Court 114 (PLP)

4. This amendment to the Regulation bad the effect of enabling persons whose names were not entered as owners in the revenue records on or before the 7th February 1959, to set up claims to the rights conferred upon "existing owners" under the Regulation, provided they could establish that, although their names were not mentioned in the revenue records, they "had become entitled . . . . on account of inheritance before (7th February 1959)" to the land in respect of which they raised their claims. Justiciable issues would arise under this provision, and a question of direct importance in the case is as to the mode of examination, resolution and‑final decision of such issues, within the Regulation.

5. On the 10th February 1959, the Land Commission acting under paragraph 15 of the Regulation, directed that all persons owning or possessing land in excess of the limits mentioned above should make declarations showing the areas they owned or possessed, areas for which they claimed exemption under the Regulation, areas gifted or received by gifts on or before the 14th August 1947, areas transferred or alienated before the 8th October 1958, areas selected for retention by them and such other matters relevant to the implementation of the reform. The making of these declarations was obligatory, and a terminal date for making them was fixed viz., the 10th April 1959.

6. The particular facts of the present case may now be stated. The estate involved belonged to one K. B. Chakar Khan who owned extensive property in the districts of Dadu and Nawabshah. He had two wives, namely, the appellant, Mst. Hajiani and Mst. Bachan, who died in the year 1949. He had a son Pir Muhammad Khan, who is a respondent in this appeal, and two daughters, Mst. Jannat and Mst. Mirzadi who are appellants along with Mst. Hajiani. In the year 1941 K. B. Chakar Khan being then 85 years of age transferred his land to his son Pir Muhammad Khan by the method of report to the revenue authorities requesting mutation of names in the revenue records. The statement which he made before the revenue authorities was that through old age he had become incapable of looking after his lands himself, and he desired "give my land to my son as he looks after the land". Mutation was sanctioned and in due course the name of Pir Muhammad Khan was entered against all the lands included in the estate. K. B. Chakar Khan died five years later in 1946, and from that time onwards until the year 1960, Pir Muhammad Khan continued to be shown in the revenue records as the single proprietor of the entire estate. The family however is one of the Sardar families of Baluchis, following the Muslim law in matters of succession and also observing the custom that only the name of the eldest male member of the family appears as the proprietor of the estate for the time being.

7. As required by the Commission's directive of the 10th February 1959, Pir Muhammad Khan on the 7th April 1959, submitted his declaration, wherein he showed inter alia that as enabled by paragraph 9 of the Regulation, he had transferred are within the permissible limits to his heirs, namely, his three sons. Hemade no mention of the widow, Mst. Hajiani or of his two sisters in this application, nor did he make any application under paragraph 11 of the Regulation favouring gifts to "female dependents". The Commission proceeded to take action on the basis of his declaration. Later, when pressed by the present appellants, Pir Muhammad Khan attempted by way of an "appeal" to secure relief for them as well, but this "appeal" was stated to have been rejected. The direct consequence was that the ladies were left without provision in their own names, for all the land comprised in the estate, except that held retainable by Pir Muhammad Khan and his three sons fell to be resumed forthwith by the Government. On the 30th November 1959, the three appellants made application to the Land Commission praying that the Commission should "specific ally permit the petitioners under the Regulation to seek their relief in Civil Court at least in regard to their inheritance from their father" and "make some provision for the petitioners during their lifetime from K. B. Chakar Khan's property." This was the relief asked for, but in the body of the petition they had also made the modest request that "at least in the meantime only 50 acres per lady should be granted till this petition is decided." Certain details contained in this petition are of interest. It was said that despite the mutation of1941 in the name of Pir Muhammad Khan, K. B. Chakar Khan "did not altogether deliver the possession so as to divest himself" of the whole estate, and specific mention was made of a lease deed executed by K. B. ChakarKhan subsequent to the mutation of names. Under the law of Islam, Pir Muhammad Khan's share in the estate was seven‑sixteenths, each widow. Had one‑sixteenth and each daughter seven‑thirty seconds. When Mst. Bachan died, her share was inherited of K. B. Chakar Khan, one half by Pir Muhammad Khan, and the other by the daughters equally. In the application to the Land Commission these proportions are stated slightly differently, but it is clear from the writ petition filed in the High Court that the correct shares are as stated above. The petition to the Land Commission goes on to say that Pir Muhammad Khan filed a declaration under the Regulation and "did not gift any part to the petitioners under paragraph 9 of M. L. R. 64, for that he chose his three sons, but sought to gift some portion to the petitioners under paragraph 11 of the M. L. R." The latter gift, it was said, had been disallowed by the Land Commission "because the Land Commission treated K. B. Chakar Khan's action as gift and the Chief Land Commissioner refused altogether to consider the point contended in. appeal." This would seem to indicate that the "appeal" attempted by Pir Muhammad ,Khan before the Land Commission was in the nature of an application under para. 11 of the Regulation. No copy of that "appeal" has been placed on the record of this appeal, but, as will be seen presently, it is an important question for consideration in this appeal, whether para. l I did indeed on the facts apply to the present case. The petition to the Commission went on to say that the petitioners "not only are deprived of their shares and failing that their dependence, but in terms of the provisions of the M. L. R. 64, they have been also deprived of their right of going to a competent Court of law and seek declaration and partition". It was asserted that "there was long standing customs for Baluch respectable ladies names not being mutated" and that a "brother's khata originating from father (was) presumed to be also of mother and sister, mutation of their names was not insisted (upon)". The petition went on to say that there had been a refusal on the part of the Commission to exercise jurisdiction vested in it to the serious prejudice of the petitioners, that the Commission was bound to enquire into all relevant matters and thereafter to decide either that the petitioners were entitled to receive their shares or alternatively to allow the petitioners to have their rights declared by a Court of law. They pleaded that Pir Muhammad Khan was not looking after them, as after the decision of the Commission, he was free of all "legal or moral liability to support them," that they were helpness being "illiterate and ignorant Baluch women in strict 18th century pardah" and had been left penniless in their old age being unable to earn a living for themselves.

8. The reply which they received from the Commission was‑ "there does not seem to be any bar in your seeking the relief in a Civil Court with regard to your inheritance from K. B. Chakar Khan shahani deceased." It may be appropriate to mention here that the petitioners were not entitled to apply on their own behalf under paragraph 11 of the Regulation. Up to the date of their petition, they did not qualify as "existing owners" in terms of the definition of that expression. This explains why in their petition they did not pursue the matter of the application by Pir Muhammad Khan under paragraph

11. Also at this place, it is appropriate to consider the question whether the determination of a claim to a share in inheritance at the hands of an authority other than the Commission, was barred by anything contained in the Regulation itself. Referring back to the definition of "existing owner" which came into effect on the 5th September 1959, it is to be observed that the term included also a person entitled by inheritance to rights in land which was being brought under the Regulation, but whose name did not appear in the revenue records. A claim to be so entitled clearly involves a dispute and the matter becomes justiciable. The Commission by its reply to the petitioners had said that there appeared to be no bar to the petitioners seeking relief in a Civil Court with regard to their inheritance, and we do not see that the Regulation contains anything to suggest that such a course contravened any provision in the Regulation. Paragraph 3 provided that the Regulation and all rules or orders made thereunder were to prevail, notwithstanding anything to the contrary contained in other laws, or in any decrees of Courts or in any contract, etc. The bar to jurisdiction was contained in paragraph 27, and prohibited the following matters, viz:‑ (1) calling in question any provision of the Regulation or of any rule or order made thereunder in any Court; (2) raising before any Court any ,,matter which the Commission or one of its officers is empowered by the Regulation to determine; (3) issuing any injunctions or other orders with regard to any proceeding before the Commission or its officers in relation to anything done or intended to be done by the Commission or any such officer. With reference to disputes the Regulation contained a specific provision in sub‑paragraph (6) of paragraph 4 reading as follows:‑ "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." Such a dispute clearly arose in ‑ the present case, and the Commission in terms which, in relation to the final decision, were clearly non‑committal, allowed the petitioners to take the matter to a Civil Court with regard to' their inheritance. Ordinarily, the decisions of Civil Courts when final are binding between the parties, but it is a question for consideration whether in the present circumstances that proposition must not be held subject to the power of final decision vested by the Regulation under paragraph 4(6).

9. The appellants acting on the permission filed a suit before the District Judge of Dadu in which the Land Commis sioner, West Pakistan and the Deputy Land Commissioners of Dadu and Nawabshah were made respondents, besides the "existing owner" Pir Muhammad Khan. A written statement was filed on behalf of the official respondents in which the following admissions were made:‑ (1) that in 1943, K. B. Chakar Khan leased out some land put of this estate, thus indicating that he still retained ownership and possession and that Pir Muhammad Khan was not made absolute owner or placed in exclusive possession of the estate in consequence of the mutation of 1941; (2) the shares of the plaintiffs in the estate of K. B. Chakar Khan under Muslim law, as stated in the plaint, were admitted to be correct; (3) that K. B. Chakar Khan's statement before the revenue authorities contained nothing definite to show that he had intended to "disinherit the ladies," that the ladies had in fact been receiving shares of the produce from Pir Muhammad Khan and there was no reason to suppose that the possession of the latter was adverse to them; (4) that it was indeed the custom among the Baluchis to allow the name of the "eldest male member of the family to stand in the Records of Rights instead of the names of the female co‑sharers also"; (5) that permission had been granted by the Commission to the plaintiffs to litigate their rights in a Civil Court; and (6) that if the Court thought some relief could be given to the plaintiffs, "the same may be given according to law". Pir Muhammad Khan filed a very brief written statement, which does not purport to deny any of the claims of the plaintiffs.

10. The District Judge decreed the suit as prayed, and directed further that the revenue records "should be mutated in favour of the plaintiffs according to the shares shown in the plaint". One of the reliefs claimed was by way of "permanent injunction to (the Commission) to refrain from resuming and absorbing the share of the plaintiff's." The District Judge relied to a great extent on the admissions made in the suit by the Commissioner's officers. He recorded the finding that by the statement of his father made in 1941, Pir Muhammad Khan was constituted a trustee and manager of the estate, and the statement did not have the effect of depriving the other heirs of their rights of inheritance. He drew the conclusion from the permission given by the Commission to the plaintiffs‑ to have their rights adjudicated upon by a Civil Court, that even the Commission did not hold that "the plaintiffs had no case".

11. Having obtained this decree, the appellants forwarded a certified copy of it to the Commission for "necessary action in so far as the shares of the petitioners in the ancestral property were concerned" (this is the wording of the writ petition). They received a reply dated the 1st May 1961, to the effect that the Commission had considered the matter and had decided that the decree by the Civil Court in this case should not be accepted as all land had been transferred in the name of Pir Muhammad Khan not as a manager, but as an owner, and therefore, "the question of Mst. Hajiani and her two daughters inheriting anything at the time of the death of K. B. Chakar Khan does not arise". Against this order no further relief was available under the Regulation, and accordingly the petitioners moved a writ before the High Court.

12. The learned Judges of the Division Bench found themselves unable to grant any relief, on the ground of want of jurisdiction. They emphasised that the Land Commission had supported the pleas of the petitioners in many respects, in the course of the proceedings before the District Judge of Dadu. The contention was raised before them on behalf of the writ petitioners that there was refusal by the Commission to do that which appeared to be the right thing merely because the Commission was "the highest authority in its own field of action". They considered that the suit was in fact barred by the provisions of the Regulation, and that the bar could not be got over by the permission granted by the Commission to the institution of the suit. They rejected the contention that the Land Commission was bound by the decree. Although there appeared to the learned Judges to be "moral weakness" in the stand taken by the Commission, nevertheless under the Regulation the Land Commission was "the exclusive authority .to decide, while scrutinizing declarations which are submitted to it under paragraph 15 of the Martial Law Regulation No. 64, as to who is the owner of the land and what part of it may be resumed." The refusal of the Commission to give effect to the decree was "neither mala fide nor a cloak for exercising unlawful authority, because it is in strict conformity with the spirit and the provisions of law." The learned Judges felt that they were not empowered to adjudicate as to the facts assessed by the Land Commission or "to review the judgment of the Civil Court". At the same time they entered a caution that they should not be "misunderstood as suggesting that the final conclusion of the‑ Land Commission is wrong".

13. Mr. G. Safdar Shah has presented a lengthy argument in support of the appeal of the ladies. He repeated the contention that the Land Commission after having submitted to the jurisdiction of the Civil Court could not refuse to be bound by the decree made by the District Judge. He emphasised that the final order of the 1st May 1961, was made behind the back of the affected parties. He referred also to the Manual issued by the Land Commission entitled "Land Reforms in West Pakistan" and in particular to Chapter IV headed "Mala fide Alienations" and Chapter VII headed "Special Provision for Female Dependents." In the former chapter there are instructions relating to alienations effected as a result of decrees of Civil Courts to the effect, inter alia, that decrees made before the 8th October 1958, "should be accepted", but those made after the 8th October 1958, should be scrutinized to determine whether or not they were obtained in order to defeat the objects of the Regulation. The Deputy Land Commissioners were instructed to refer to the Chief Land Commissioner cases where they considered that the decrees obtained otherwise than by compromise should be recognised. The present is not a case of an alienation, but even if it were, it is clear that the language used in the instructions does not detract from the finality of decision vested in the Commission by the terms of paragraph 4(6) of the Regulation. Mr. G. Safdar Shah appeared to claim that the power of certiorari in respect of the Commission's order of the 1st May 1961, could not be taken away except by clear words.

14. As has been pointed out above, the petition of the three ladies to the Land Commission did not, and in fact could not, seek relief for them such as might have been obtained by an application by Pir Muhammad Khan under paragraph

11. What they sought was have themselves accepted as "existing owners, within the meaning of the definition introduced on the 5th September 1959, that is persons who had inherited a share in the estate of K. B. Chakar Khan, but whose names had not been entered in the revenue record. If this position had been accepted by the Land Commission, the next step they would be required to take was to file declarations in compliance with the directive of the 10th February 1959, (subject to considerations of limitation) and under the terms of the Regulation they would each have been entitled, subject to availability, to retain land as provided by the Regulation in the case of owners. They made no such application, but contended themselves with calling upon the Land Commission to recognise the decree which they had got from a Civil Court. As has been said, above, the power of final decision in respect of every disputed matter is vested in the Commission and in our opinion it is subject to that power of final decision that the action of the Commission in permitting the matter to be litigated before a Court should be interpreted and understood. It would certainly have been of advantage to the Commission, in case it was finally decided to admit their claim to be "existing owners," if at the same time there had been before them a judicial decision inter parties, as to the precise share to which the petitioners were entitled individually, for their declarations could only have taken shape after the full extent of their respective shares was known. By accepting the shares so found, an investigation by the Commission itself might have been avoided. We do not see that the employment in this way of a Civil Court to investigate and decide matters relevant to the final decision o B the Commission involves in anyway abandonment or waiver of the Commission's statutory power of final decision. Therefore, we are unable to agree with the finding by the High Court that the District Judge's jurisdiction in relation to the suit was barred by anything contained in the Regulation. What was safeguarded by the Regulation was the power of final decision in all disputed matters. Though a party might be thought to be barred from raising before a Court matters which the Commission was c empowered to determine, by the terms of para. 27, yet there seems to 'be nothing to prevent the Commission from procuring assistance in the resolution of civil disputes, as to rights, from the agency best qualified to perform this function, namely the Civil Courts, provided the right of final decision conveyed by para. 4(6) was preserved intact. The action of the Commission in D permitting the ladies to move a Court for relief in regard to their inheritance is best construed in this light.

15. In another respect also the decision by the Civil Court inter parties fixing the shares of these female dependents, could be of value to the Commission, that is in relation to possible action under paragraph 11, for fixing what number of produce index units each of these dependents could be allowed to receive from the existing owner, within the, maximum provided by that paragraph. Paragraph 11 is directly relevant for the reason that it seems to us that on its true interpretation to apply with precision to a case like the present. This conclusion follows from the fact that while paragraph 11 allows the transfer by an "existing owner" of land up to a maximum to each of his female dependents, the proviso to that sub‑paragraph clearly envisages that these female dependents are in fact owners by inheritance in the land although they do not appear as such in the Revenue Records or otherwise, by the use of the; expression "the Commission is satisfied that the dependent in question is a person who 'was entitled to inherit her share out of the property in question at the time when succession opened but for reasons of custom or usage became dependent on the applicant instead of inheriting the property in her own name." That is precisely what has happened in the present case, as was admitted before the Civil Court on behalf of the Commission itself. From the terms of this paragraph, a further conclusion may justifiably be drawn. It is, that in the circumstances envisaged in the proviso, which are clearly present in this case,) ladies who were "entitled to inherit a share" are not to be treated on the same basis as "existing owners". They may not independently declare their property and claim to retain fort themselves, land up to the full amount of 36,000 produce index units per person. They are to be provided with a much smaller area, namely, a maximum of 6,000 produce index units per person, by the mode of transfer from the "existing owner", are namely, the male member whose name appears as proprietor in the Revenue Records. This diminution of right follows from two circumstances, viz., absence of visible proof of ownership, and the fact of dependence. It cannot be overcome by merely establishing entitlement to a specific share when the succession opened out. Therefore, the action taken by the Commission in refusing to recognize the decree of the Civil Court fixing the shares of these ladies, which might enable them to claim in the right of "existing owners" would be justifiable on the ground that in such circumstances, as were present in this case, the Regulation required that the ladies, who admittedly were "female dependents" within the meaning of paragraph 11 and satisfied all the other conditions of the paragraph, should be treated only under that paragraph.

16. It is here however that there still appears to remain, scope for granting relief to the ladies. At one stage, Pir Muhammad Khan attempted an "appeal" by which is probably meant an application under paragraph 11, which was rejected by the Commission. This was before the Commission, had been placed in possession of the full circumstances, as a result of the trial and adjudication of the ladies' civil suit. No, copy either of this "appeal'", or of the decision thereof has been placed before us. The petition of these ladies to the Land Commission said on the point that when Pir Muhammad Khan attempted to make a transfer under paragraph 11 of the Regulation, he was refused permission "because the Land commissioner treated K. B. West Pak. Chakar Khan's action as gift and the Chief Land Commissioner Land refused altogether to consider the point contended in "appeal". Commission It may be safely assumed that what was there decided was in substance not different from the decision given on the 1st May Cornelius, 1961, namely, that in the view of the Commission "all land had been transferred in the name of Pir Muhammad not as a manager, but as an owner". Now, had the land been transferred to him in the capacity of a manager, the position would, in our opinion, have been no different, qua the rights of the ladies, from what it has been held to be, that is transfer as an owner. But it has been admitted by the Commission's officers, in their written statement before the Civil Court, that the entry of Pir Muhammad Khan's name as owner in the Revenue Records in 1941 was in accordance with the custom of these Baluch families and that there was nothing in K. B. Chakar Khan's statement to show that he intended to disinherit the ladies, in addition to which it was admitted as a fact that the ladies had been receiving their maintenance out of the produce of the land, i.e., that they were "female dependents". These matters of custom and fact were not before the Land Commission or the Chief Land Commissioner at the time when the so‑called "appeal" of Pir Muhammad Khan was rejected, and they would appear to constitute sufficient ground for the exercise by the Chief Land Commissioner (subject to consideration of limitation) of the power vested in him by rule 11 of the West Pakistan Land Reforms Rules, 1959 to review his previous order (or that of his predecessor in office)) made on this point, which' is clearly one still requiring to be decided, for the due implementation of the principles of the) Regulation, on the basis of facts made to appear thereafter in consequence of a judicial proceeding to which the Land Commission itself submitted.

17. It may be, of advantage, in relation to the course of action suggested in the foregoing paragraph, to point out that para. 11 is not to be construed as a merely enabling provision. It purports to make "special provision" for persons who are ex hypothesis dependent for their sustenance upon the estate, of which a part is being sequestrated and appropriated to the Government. Every consideration of justice, and all cannons of statutory interpretation combine to require that the relief provided by the paragraph should be allowed to the extent possible,. in regard to all the circumstances. Those "dependents" cannot, within the purpose of the Regulation and its true H construction, be left without independent means of sustenance, by operation of this expropriatory law, which must, in this respect bet interpreted to the advantage of the `dependent'. So much appears, beyond all doubt, by the firm requirement in sub‑para. (3) of para.' 11, that even if no land remains available for such a dependent from out of the estate upon which she was dependent, as a result of actions taken under the Regulation, an area equivalent to that which the Commission finds that the "existing owner" should be allowed to transfer to her under sub‑para. (1), may be provided for her out of "other resumed land". Although permissive expressions are used, e.g., "may allow . . . . . transfer by way of gift," "may be given out of other resumed land", the terms of para. 11 read as a whole clearly require that when the conditions required of the "existing owner" and the "female dependents" are satisfied, relief becomes mandatory. The submissions of the ladies that they have always been dependent on this estate, that they have lived their lives in strict purdah, in accordance with their status in the family of a very large land‑owner, that they are old and helpless to earn a living for themselves, and that as Pir Muhammad Khan's estate has already been drastically reduced, he will not make provision for them, are undeniably true, and seem to attract to the full the relief, by way of independent provision of land, that the Regulation expressly authorises in cases such as theirs.

18. But it is clear that the High Court had no jurisdiction to interfere with the order of the Land Commission dated the 1st May 1961, refusing to recognise the three ladies as "existing owners" on the basis of the decree which they had obtained, and equally, the other reliefs sought in the writ petition were barred by paragraph 4, sub‑paragraph (6) and other provisions in the Regulation. Therefore, the order of the High Court refusing the writ claimed must be upheld and I would therefore dismiss this appeal, but having regard to all the circumstances of the case, would leave the parties to bear their own costs.

19. At the same time I would direct that a copy of this judgment shall be sent to the Chief Land Commissioner, with particular reference to the observations made in paragraph 16 above, for such action as he may think fit to take. B. Z. KAIKAUS, J.‑ I agree in the order proposed. I have already in the main case relating to the orders of the Chief Land Commissioner expressed my agreement with my Lord the Chief Justice. In the present case I would dismiss the appeal on the simple ground that Regulations 88 and 93 and section 7 of President's Order 26 of 1962 debar the Courts from challenging the order of the authorities acting under the Land Reforms Regulation. A. H. Appeal dismissed.