1998 PLP 36 (SCMR)

SAIDUZZAMAN SIDDIQUI, J.

The above appeals with the leave of this Court are filed by the Government of N.-W.F.P. against the judgment of a learned Division Bench of Peshawar High Court dated 7-12-1992. Leave was granted in the above appeals to consider the following contentions:-- ,. "Mr. Abid Hassan Minto, learned counsel for the petitioners in all these petitions, argued that Nawab Muhammad Fareed Khan had already made declaration under M.L.R.64 and subsequently there was declaration in respect of the same property and the Chairman, Federal Land Commission had no power to authorise filing of fresh declarations under M.L.R.64 or under M.L.R.115 and that even in the case of pending cases the only thing to be seen was if there was change of status. To consider these contentions on behalf of the petitioners, leave to appeal is granted in all these petitions. It is further ordered that the stay order already granted shall continue till these appeals are disposed of."

2. The above appeals have arisen in these circumstances. Nawab Muhammad Fareed Khan, also known as Nawab of Amb (hereinafter to be referred, for the sake of convenience, as (the Nawab only), owned considerable landed property at different places in the North-West Frontier Province (N.-W.F.P.). Under M.L.R.64 the Nawab declared his total land holding measuring 83506.896 acres. In Forms L.C.I. and L.C.II submitted by the Nawab under M.L.R.64, the details of the area of lands retained and surrendered respectively, were shown as follows:-- Area retained = 1507.882 acres Area gifted = 706.707 acres Area surrendered = 81292.307 acres

Total area = 83506.896 acres

Out of the surrendered land, the Government of N.-W.F.P. sold an area of 14823.448 acres to the Forest Department between the period from 1965 to 1966. The subject-matter of the above appeals is, however, only an area of 7020.953 acres (hereinafter to be called as the suit land) only out of 14823.448 acres sold to Forest Department, situated in the following villages:-- The Nawab died on 20-12-1970 leaving behind a widow, Mst. Rehmatun Nisa, a daughter Bibi Zaitoon and a son Nawabzada Muhammad Saeed Khan. No dispute was raised by the above legal heirs of the Nawab after his death with regard to the lands surrendered by the Nawab under MLR-64. Nawbzada Muhammad Saeed Khan, one of the legal heir of the Nawab, died on 14-7-1973, leaving behind two sons, three daughters and a widow (who are respondents Nos.6, 8 to 12 respectively in the above appeals). It appears that some of the legal heirs of Nawabzada Saeed Khan were minors at the time of his death, therefore, for sometime the properties falling to the shares of minors was taken over by the Courts of Wards. Respondent No.6 (Nawabzada Salahuddin Khan) appeared to. have moved an application before the Chairman, Federal Land Commission, Islamabad on 25-7-1990, with the following prayer:-- It further appears that on the same date i.e., 25-7-1990 Gul Wali Khan, Head of N.-W.F.P., Inspection Team Federal Land Commission, Peshawar, also submitted a detailed report to Secretary, Federal Land Commission in respect of the declaration submitted by the Nawab under M.L.R.64, and suggested the following action in suo motu exercise of the power by the Chairman, Federal Land Commission, under M. L.R.115:-- "It is, therefore, suggested that the Chairman, Federal Land Commission may be pleased to pass judicial order on Suo Motu Side as under:-- (1) The Deputy Land Commissioner, Mansehra may be directed to pass final orders under M.L.R.64, in respect of heirs of Nawab Muhammad Farid Khan and Rehmay-un-Nisa Begum (wife), Nawab Muhammad Saeed Khan (son) and Bibi Zaitoon (daughter) on 2U-12-1970 and choice given to the present heirs including the Land (Dhaka Darakhtan) surrendered by Nawab Muhammad Farid Khan and transferred by the Land Commission to the Forest Department and 2804 acres transferred to WAPDA. Only that land should remain with the Forest Department and WAPDA which is not retained by the heirs of Nawab Muhammad Saeed Khan. . (2) After that is done final order of resumption in respect of fresh inheritance cases of the heirs of Nawab Muhammad Saeed Khan died in July, 1973 be passed and choice given to the present law. (3) After this done final order of resumption under Act Il be passed in respect of heirs of Nawab Muhammad Saeed Khan and choice given according to the existing law." Acting on the above material, the Chairman, Federal Land Commission, by his order dated 7-8-1990, directed the Deputy Land Commissioner to take following action in respect of the declaration submitted by the Nawab under M.L.R.64:-- "

6. After the decision of the Supreme Court of Pakistan, the Deputy Land Commissioner is required to issue fresh notices to the heirs of Nawab .Muhammad Fareed Khan to, file declaration forms under M. L.R.64, as the property stood on 20-12-1970, and M. L.R.115, for independent determination under M.L.R.64 and M.L.R.115. The Deputy Land Commissioner is directed to direct the heirs to-file fresh declaration forms under M.L.R.64 in respect of the property of Nawab Muhammad Fareed Khan and his heirs, as it stood under M.L.R.64 on 20-12-1970. After the determination of the declaration forms and the choice given to the heirs including the land provisionally transferred by the Land Commission to the Forest Department, under MLR-64, the Deputy Land Commissioner should determine the holding of the heirs under M.L.R. 115." The Deputy Land Commissioner, in compliance with the above order of Chairman, Federal Land Commission, took up the case and after allowing the heirs of the Nawab to submit fresh choices by filing L.C. I and L.C. II Forms, determined their respective entitlements afresh under M.L.R.64 as follows, by his order dated 21-5-1991:-- "In compliance with the order of Federal Land Commission dated 7-8-1990, I allow an area equivalent to 36000-PIUs to each of the above donees as per area mentioned in L C-I and II including Forests area now given as Choice in Supersession of the order already passed by Deputy Land Commissioner dated 6-10-1960 to the extent as indicated by the above declarant Nawab Mohammad Fareed Khan, surplus area excluding the area gifted by the declarant Nawab Muhammad Fareed Khan to Mehboob Sultana to the extent of 263.541 acres equivalent to -5161-PIUs and Zubeda Khatoon, an area measuring 852.818-acres equivalent to -36000-PIUs totalling an area of -73827.105-acres equivalent to 1623165.701-PIUs is hereby resumed under M.L.R.64 on payment of compensation as admissible under M.L.R.

64. In case any area found surplus thereafter, it will also stand resumed. The resumed area should be disposed of in accordance with the sale scheme under M. L. R.64 if not already disposed of."

3. As a result of the fresh choice exercised by the heirs of Nawab (respondents 6 to 14) the forest land measuring 7020 acres, 7 Kanals and 13 Marlas (the suit land) which was already sold by the Provincial Government to the Forest Department during 1965;66 was assigned to respondents 6 to 14 as the land retained by them under M.L.R.64. The Forest Department was neither made party nor given any opportunity of hearing in the above proceedings. However, no sooner the Forest Department became aware of the above proceedings and orders they filed Writ Petitions Nos. 1523 to 1531 of 1991 before the Peshawar High Court but the same were dismissed by the impugned judgment against which leave has been granted as aforesaid.

4. Mr. Abid Hassan Minto, the learned counsel for the appellants in support of the above appeals has raised the following contentions:-- (1) That there being no proceeding pending in respect of the suit land when the order determining the entitlement of the Nawab and allowing him to exercise choice under M.L.R.64, was passed, the case could not be reopened subsequently under M. L.R.115; (2) That there being no change in the status of suit land as a result of the proceeding before the Civil Court, the resumption order passed by the D.L.C. on 6-10-1960, could not be considered provisional in nature so as to confer jurisdiction on Land Commission Authorities to reopen the case; (3) That the Forest Department having purchased the land from Government and developed the same at a huge cost, after it w,2s surrendered by the Nawab under M.L.R.64 it was necessary party to the proceedings and no order adverse to its interest could be passed by the Chairman, Federal Land Commission or D.L.C. without affording it an opportunity of hearing; (4) That in view of the bar contained in clause (a) of the 3rd proviso to section 29 of M.L.R.115, the Chairman Federal Land Commission had no jurisdiction to call for the record of the case relating to surrender of land by the Nawab and pass the order dated 7-8-1990, and same reason applied to the subsequent order of D.L.C. dated 21-5-1991. Replying to the above contentions of the learned counsel for the appellants; Mr. Abdur Rahim Kazi, the learned counsel for the respondents contended that the order dated 6-10-1960 passed by the Deputy Land Commissioner (D.L.C.), on the Declaration Forms submitted by the Nawab under M.L.R.64, was provisional in nature as on the date of adjudication of the case by D.L.C., litigations in respect of land belonging to the Nawab, were pending before the Civil Court which finally came to an end somewhere in 1988-89. According to Mr. Kazi, on conclusion of civil litigation, the respondents were entitled to file a fresh choice in accordance with the final decision of Civil Court in view of the judgment of this Court in the case of Muhammad Fareed Khan v. Muhammad Afzal Khan (1968 SCMR 262). Mr Kazi further contended that the resumed land under paragraph 19 of M.L.R.64 could be sold only to the sitting tenants of land and as such the sale of the land resumed from the respondents' predecessor's holding to the Forest Department was wholly illegal . Mr. Kazi also argued that the Nawab and after his death the respondents 6, 8 to 14 were entitled to compensation as prescribed under paragraph 17 of M.L.R.64 and therefore, until such time the compensation for the resumed land was paid by the Government it could not be disposed of by the Government. The last contention of the learned counsel for the respondents is that the letter dated 27--7-1966 relied by the appellants in support of the sale of suit land by the Government in their favour, only shows that the available resumed State land and Jagir land, for which no compensation was payable by the Land Commission, was to be sold by the Chief Land Commissioner to the Forest Department at the rate of Rs.8 per produce index and to other departments of Provincial Government at the rate of Rs.80 per produce, or the current market value of the land. Since the suit land did not fall in the category of either State land or a Jagir and compensation was also payable in respect, therefore, its sale to appellants was illegal.

5. The first question which requires determination in the above appeals is, whether on the date the D.L.C., passed the order dated 6-10-1960 any civil Proceedings in respect of the suit land were pending which rendered the order dated 6-10-1960 provisional in nature, so as to entitle the declarant or his legal heirs to submit their fresh declaration exercising fresh choice on the conclusion of civil proceedings. The learned counsel for the respondents very vehemently relied on the decision rendered by this Court in the case of Muhammad Farid Khan v. Muhammad Afzal (supra), wherein a portion of the order of D.L.C dated 6-10-1960 was reproduced to demonstrate that the order was provisional in nature. The learned counsel for the appellants on the other hand contended that the subject-matter of the land in the above-cited case was different from the suit land and the civil suit wherefrom appeal was brought before this Court was instituted after the decision of D.L.C. dated 6-10-1960.

6. From the facts as stated in report of the above-cited case, it appears that the Nawab instituted a declaratory suit .against Muhammad Afzal Khan (respondent in that case) on 21st June, 1961 to challenge the entries in the Revenue Record in respect of land situated in Upper Tanawal Tract which were entered in the name of Muhammad Afzal Khan as 'Guzarakhor' of the Nawab, on 30-4-1960. The Nawab claimed the ownership of the land in Upper Tanawal Tract on the basis of the letter of Government of West Pakistan dated 16-4-1959, wherein his claim of ownership of the above land in Upper Tanawal Tract was accepted by the Government. The Nawab had shown the land in Upper Tanawal Area as his property in his declaration forms filed before the Land Commission Authorities under M.L.R.64. The Land Commission Authorities, however, on the basis of existing entries in favour of Muhammad Afzal Khan, did not treat the Nawab as owner of the land in Upper Tanawal Tract while determining his entitlement under M.L.R.64. The maintainability of the suit instituted by Nawab was challenged by Muhammad Afzal Khan (respondent in the cited case) under paragraph 27 of M.L.1k.64 on the ground that the D.L.C. in its' order dated 6-10-1960 had upheld the entries in the revenue record, in his favour. It was in this context that this Court reproduced the following passage from the order of D.L.C. dated 6-10-1960 and observed that the order was provisional in nature:-- "The learned counsel for the declarant stated that the declarant had lodged a declaratory suit for establishing his rights over the forest land in question. As the rights of the declarant have to be verified from the existing Revenue Record, it is outside my jurisdiction to investigate the dispute that has arisen over the ownership of the forest land in question. The entries in the 'Fard Badar' prepared by the revenue staff are, therefore, upheld. " The scope of the order of D.L.C. dated 6-10-1960, in the light of the instructions issued by Land Commission Authorities in this behalf, wits further explained by this Court keeping in view the controversy raised before it in the cited. case, as follows:-- "For a proper, understanding of the order of the Deputy Land Commissioner, it is necessary to refer to certain instructions issued by the West Pakistan Land Commission on the 3rd March, 1960, and in particular to paragraph 12(a), which reads as follows:-- 'Where any land is the subject-matter of civil litigation, the surplus area shall be provisionally resumed but shall not be disposed of under paragraph 19 of the said Regulation until the decision of the civil quit'. " The rest of this paragraph in the instructions contains directions as to the recognition by the Land Commission of the tenants of such land and as to the holding of the rent paid by them for disbursement in accordance with the final decision in the matter. For a proper understanding of this instruction, reference may be made to paragraph 50 in the Land Reforms Manual published by the West Pakistan Government, Volume I, which reads as under:-- "

50. Representations were received from certain declarants in respect of the land which was under litigation and the decision of these cases was likely to take a long time. It was requested that till the decision of these Ycases, their holdings should not be determined. It was decided that in such cases the declarants could not be allowed to retain more than the prescribed area but the land should be resumed on provisional basis until the final adjudication of the rights of the litigants. The Commission examined this question on more than one occasion and decided that in respect of all cases which were the subject-matter of civil litigation, the following action should be taken. (i) Surplus area should be provisionally resumed but not disposed of under paragraph 19 of the Regulation till the decision of the civil suits instituted before the promulgation of the Regulation .... " As has been said already, the Land Commission Authorities were bound to recognise any person entered as a proprietor in the Revenue Records as the "existing owner" of the land, but at the same time, the instructions that were issued clearly showed that the Land Commission did not propose to, ignore the result of any decision given in civil suits where the proprietorship so recorded was challenged. Not only was this possibility recognised, but the instructions issued under sub-paragraph (5) of paragraph 4 of the Regulation, which have effect 2s if they were part of the Regulation itself, provided a machinery by which the decisions of the Land Commission could be adapted to the final decision in such civil litigations regarding titles. It was expressly stated that in such cases the resumption of the land would be provisional. That position is by no means to be regarded as having been negatived by the circumstances that under Martial Law Regulation No.64, the Land Commission Authorities were entitled to ignore decisions given by Civil Courts. They had equal power to accept those decisions. On this point, the view of the learned Single Judge cannot be supported. It is in the light of the instructions mentioned above that the decision taken by the Deputy Land Commissioner in the passage quoted above must be interpreted. He was aware that a declaratory suit had been filed for determination of title in respect of the land in dispute. Certain salient features of the dispute had been placed before him, which are set out in paragraph 4 of his order, and it is with reference to the pendency of the suit for final decision of his dispute, that the Deputy Land Commissioner observed that 'it is outside my jurisdiction to investigate the dispute that has arisen over the ownership of the forest land in question'.' It is true that when he decided to follow the Revenue entries, he did not say that he was doing so provisionally, but his order read as a whole cannot be understood in any sense other than that the action to follow thereon was to be in the nature of a provisional resumption. The view expressed by the learned Single Judge to the contrary is not in our view, speaking with respect, capable of being sustained. In the circumstances. we consider that the suit was clearly competent, and was not barred by anything contained in Martial Law Regulation No. 64." The ratio deducible from the above-quoted passages from Muhammad Farid Khan's case is, that on the date the Land Commission Authorities determine the entitlement of a declarant under M.L.R.64, and assume excess land, if some proceedings are found to be pending before the Civil Court in which the title to the land which is also subject-matter of declaration under M.L.R.64 is sub judice, then the determination of entitlement and resumption of land will be deemed to be provisional in nature subject to final result of the proceedings before the Civil Court. No doubt the passage reproduced from the order of D. L. C. in the judgment of this Court in Muhammad Farid Khan's case does show that the Nawab had made assertion before the D.L.C. at the time-of determination of his entitlement on the basis of L.C. I. and J,.C. II forms submitted under M.L.R.64, that he had filed a declaratory suit before the Civil Court to establish his title to the land which was wrongly entered in the name of Muhammad Afzal Khan by the revenue authorities, but from paragraph 4 of the order of D.L.C. dated 6-10-1960 it appears that this land was situated in the area of Kala Maira measuring 2017.562 acres. The appellants in their Writ Petition No. 1532 of 1991 before the High Court of Peshawar, specifically asserted that it was this land which was subject-matter of dispute in the case reported as Muhammad Farid Khan v. Muhammad Afzal (supra). According to the assertion of appellants before the High Court as well as in this Court the land which is subject-matter of controversy in the above appeals is quite distinct and different from the land which was subject-matter of proceedings before this Court in the case of Muhammad Farid Khan v. Muhammad Afzal Khan, supra. This assertion of the appellants was neither denied before the High Court nor before us. We have already mentioned earlier in this judgment, that the Nawab instituted the suit in respect of the land which was subject of dispute in the case reported as Muhammad Farid Khan v. Muhammad Afzal Khan (supra), on 21st of June, 1961. This suit, therefore, was instituted after the decision of D.L.C. dated 6-10-1960. No effort was made by the respondents to bring on record any material to establish that on 6-10-1960. When the D.L.C. determined the entitlement of the Nawab on the basis of L.C. I and L.C. II Forms submitted by him under M.L.R.64 and ordered resumption of excess land, any proceeding was pending before any Civil Court in respect of the 'suit land'. Since 'the respondents relied before us only on the proceedings of the suit instituted by the Nawab, referred by this Court in the case of Muhammad Farid Khan v. Muhammad Afzal Khajt (supra), which as stated by us earlier, neither related to the suit land nor it was instituted prior to the passing of the order dated 6-10-1960 by D.L.C., therefore, pendency of this suit could not render the decision of D.L.C. dated 6-10-1960 provisional in nature in terms of the ratio decidendi laid down by this Court in Muhammad Farid's case. It is not disputed before us that the order of D.L.C. dated 6-10-1960 was not challenged either by the Nawab or by his successors, and therefore, it attained finality. Since we have reached the conclusion that the order passed by D.L.C. on 6-10-1960 was not provisional in nature, the proceeding could not be deemed to be pending in terms of paragraph 32 of M.L.R.115 which repealed M.L.R.64. Paragraph 32 of M. L.R.115 reads as follows:-- "Repeal and saving

The West Pakistan Land Reforms Regulation (Regulation 64 of 1959) hereinafter referred to as the said Regulation, is hereby repealed. (2) Subject to the other provisions of this Regulation, the repeal of the said Regulation shall not affect-- (a) any previous operation of the said Regulation or the validity, invalidity, effect or consequences of anything already done or suffered thereunder; or (b) any right, title, privilege, obligation or liability acquired, accrued or incurred thereunder; or (c) any penalty, forfeiture or punishment incurred in respect of any offence under the said Regulation; or (d) any investigation, legal proceedings or remedy in respect of any such right, title, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid; and any such investigation, legal proceedings, or remedy may be instituted, continued or enforced and any such penalty, forfeiture or punishment, may be imposed as if this Regulation had not been made. (3) Any proceeding pending before any authority constituted or appointed under the said Regulation immediately before the coming into force of this Regulation, shall stand transferred to such authority constituted or appointed under this Regulation as the Commission, may, by order published in the official Gazette, specify in this behalf, and the authority to which such proceedings are transferred shall, in such proceedings; act in accordance with the provisions of the said Regulation, as if it had been appointed under the said Regulation. (4) Land vesting in Government under the repealed Regulation and not granted to any person before the repeal thereof shall be disposed of or utilized by Government as far as may be in accordance with the provisions of Part V."

7. The learned counsel for the respondents has, however, argued that Federal Government or any other person authorised by it in this behalf in exercise of its power under paragraph 29 of M. L.R.115, was competent to call for the record of any case or proceedings which was either pending or in which any order was passed by the Commission or any other authority appointed under M.L.R.115 or M.L.R.64, other than the Federal Land Commission, to satisfy itself about the correctness, legality, or propriety of such order and may pass such order in relation thereto as the Federal Government or the person authorised by it may think fit. The learned counsel, accordingly, argued that the Chairman Federal Land Commission, under the above provision was fully competent to call for the record of the case in which the D.L.C. had passed the order dated 6-10-1960 and after satisfying itself as to the legality or propriety of order, could pass any order which it thought fit and necessary in the circumstances of the case. No doubt the revisional power of the Federal v Government is contained in very wide terms in paragraph 29 of the M. L.R.115 but this power is to be exercised subject to conditions mentioned in the three provisos appended to it. It reads as follows:-- "

29. Revisional Rowers of the Federal Government

The Federal Government, or any person authorised by it in that behalf, may at any time, of its, or his own motion or otherwise, call for the record of any case or proceedings under this Regulation or under the repealed Regulation which is pending or in which a Commission or any other authority appointed under this Regulation or under the repealed Regulation other than the Federal Land Commission constituted under paragraph-4-A, has passed an order, for the purpose of satisfying itself or himself about the correctness, legality or propriety of such an order, and may pass such order in relation thereto as the Federal Government or, as the case may be, such person thinks fit: Provided that the Federal Government may, from time to time, specify the case or class of cases in which it desires to pass final orders: Provided further that no order shall be passed under this paragraph revising or modifying an order affecting any person unless such person has been afforded an opportunity of being heard: Provided further that the record of any case or proceedings in which a Commission or other Authority has passed an order shall not be called for under this paragraph by the Federal Government or the person authorised by it--, (a) of its or his own motion, after the 30th day of November, 1976, or (b) on the application of any aggrieved person made after the expiration of sixty days from date of such order or from the enactment of the Land Reforms (Amendment) Act, 1973, whichever is later, excluding the time requisite for obtaining a copy of such order. " A careful reading of the above provision would show that the revision powers contained in the main paragraph 29 of M. L.R.115 are not unfettered but are controlled by the three provisos appended to it. Under the first proviso, the Federal Government may specify the cases or class of cases in respect whereof the power of revision may be exercised. Under the second proviso the Federal Government or its delegatee cannot modify or revise an order which affects the right of any party unless such party has been given an opportunity of hearing in, the case. The third proviso places complete embargo on the exercise of the suo motu revisional power by the Federal Government or by a person authorised but in this behalf after 30th day of November, 1976. This proviso also prohibits exercise of revisional power under paragraph 29 ibid by the Federal Government or by a person authorised by it in this behalf at the instance of a party after the expiry of sixty days, from the date of the order sought to be revised or from the date of enactment of Law Reforms (Amendment) Act, 1973 whichever is later. However, the period spent in obtaining a copy of such order may be excluded from the period prescribed in this behalf. In the case before us, the learned Chairman, Federal Land Commission as well as Deputy Land Commissioner passed orders dated 7-8-1990 and 21-5-1991 respectively in utter disregard of the provisions of second proviso to paragraph 29 of M.L.R.64 as they failed to afford any opportunity of hearing to the Forest Department before passing the above orders which adversely affected the interest of the Forest Department in the suit land. Similarly, the application invoking the revisional jurisdiction under paragraph 29 of M.L.R.64, was moved by respondent No.6 before the Chairman, Federal Land Commission on 25-7-1990. On the same date Head of N.-W.F.P. Inspection Team, Federal Land Commission, Peshawar, submitted his detailed report in continuation of his Preliminary Report No.29/00 89/1013/Mansehra dated 3-10-1989 to Secretary, Federal Land Commission, recommending action by the Chairman, Federal Land Commission in the case of the Nawab in exercise of his suo motu revisional jurisdiction. Therefore, from whichever angle the case is examined, the order of Chairman, Federal Land Commissioner passed on 7-8-1990 in exercise of his revisional jurisdiction under paragraph 29 of M. L.R.115 was wholly without jurisdiction and so was the order passed by D.L.C. on 21-5-1991. The next contention of Mr. Abdur Rahim Kazi, the learned counsel for the respondents in the above appeal is, that the land could not be sold by the Provincial Government to the Forest Department for three reasons. Firstly, the resumed land under paragraph 19 of M.L.R.64 could be sold only to sitting tenants. Secondly, until compensation was paid to the Nawab or his legal heirs (respondents 6, 8 to 14) in accordance with paragraph 17 of M.L.R.64, the excess land resumed from the holding of Nawab could not be disposed of by the Government and lastly, the letter on the basis of which the resumed land was sold to Forest Department by the Provincial Government, authorised sale of resumed State land and Jagirs only for which no compensation was payable by Land Commission Authorities and as the resumed land of the Nawab was subject to payment of compensation, according to Mr. Kazi, the same could not be sold by the Government to the Forest Department. We are not impressed by the above contentions of the learned counsel for the respondents. To deal with the above contentions of the learned counsel for the respondents it is necessary to examine here in some detail the provisions of paragraphs 16, 17 and 19 of M.L.R.64 which read as follows:-- "

16. Resumption and vesting in Government excess land.

(1) Land in excess of the area permissible for retention under Part III shall vest in and be resumed by Government free from any encumbrance or charge. (2) An encumbrance or charge which existed on any land resumed under sub-paragraph (1) shall be deemed to have been transferred to the land retained under Part III, and also the compensation payable under paragraphs 17 and 18 to the extent necessary.

17. Sale and payment of compensation.

(1) In addition to any compensation which may be payable under paragraph 18, compensation for land resumed under paragraph 16, shall be paid according to the following scale, that is to say:-- (a) for the first 18,000 produce index units, at the rate of Rs.5 per unit; (b) for the next 24,000 produce index unit, at the rate of Rs.4 per unit; (c) for the next 36,000 produce index units, at the rate of Rs.3 per unit; (d) for the next 72,000 produce index units, at the rate of Rs.2 per unit; and (e) for the balance, at the rate of Re. l per produce index unit. (2) Compensation payable under this paragrpah shall be paid through heritable bonds which shall be transferable but shall not be negotiable through or with banks. (3) All bonds shall bear taxable simple interest at the rate of four per cent. per annum payable annually in the prescribed manner. 19..Sale of resume

(1).Land resumed under Part IV shall in the first instance, be offered for sale, on such terms and conditions as may be prescribed, to the tenants who are in cultivating possession of it, and any such land not sold to such tenants, shall be offered for sale to such other persons, and on such terms and conditions, as may be considered suitable by the Commission. (2) Interest may be charged on the price payable under paragraph (1) at such rates as may be prescribed." Paragraph 16 of M.L.R.64 provides that the land in excess of area permissible for retention under the Regulation vests in the Government on resumption free from all encumbrances. Under paragraph 17, no doubt compensation for the resumed land is payable in accordance with the scale provided in this paragraph, but the compensation is to be paid through heritable bond which were transferable but not negotiable through or with Banks. However, these bonds carried simple interest at the rate of 4 per cent. per annum which was payable annually in the prescribed manner. Paragraph 19 of M.L.R. 64 provides that the resumed land will be offered for sale, first to the tenants who may be in cultivating possession of the land on the prescribed terms and conditions failing which the land may be sold to such other persons on such terms and conditions as may be considered suitable by the Commission. There is to nothing in the language of paragraphs 16, 17 or 19 (ibid) to support the contention of Mr. Kazi, the learned counsel for the respondents that the resumed I land could not be sold by the Government until compensation was paid to former holder of the land. On the contrary, the Scheme of paragraph 17 (ibid) suggests that the compensation for the resumed land was not payable immediately but it was deferred in the shape of inheritable bonds which were not negotiable through the banks. No doubt, under paragraph 19 (ibid), the resumed land was first to be offered for sale to the sitting tenants of the land but no sitting tenants of the land ever came forward to challenge the sale of the suit land to Forest Department on this ground till now. In these circumstances, the sale of the suit land to Forest Department was unexceptionable and in any case it could not be objected to by respondents Nos.6, 8 to 14 who had no title to it after it was resumed under ,paragraph 16 of M.L.R.64. The last objection of Mr. Kazi to the sale of suit land to Forest Department is, that under the letter dated 27-7-1966, only resumed State land and Jagirs for which no compensation was payable F could be sold to Forest Department. apart from the fact that the excess land resumed from the holding of the Nawab under paragraph. 16 of M.L.R.64, vested in the Government free from all encumbrances and charges and therefore, it assumed the character of State land, the manner of disposal of suit land was fully in accord with the provisions of paragraph 19 of M. L.R.64. We, therefore, find no merit in the above contentions of Mr. Kazi. We are, therefore, of the view that neither in law nor on facts there existed any justification for passing the orders dated 7-8-1990 and 21-5-1991 by the Chairman, Federal Land Commission and the Deputy Land Commissioner, respectively. We, accordingly, allow all the above appeals and declare the orders passed by Chairman, Federal Land Commission dated 7-8-1990 and that of Deputy Land Commissioner dated 21-5-1991 as without lawful authority and of no legal effect. There will, however, be no order as to costs in the circumstances of the case. (Sd.) Saiduzzaman Siddiqui, J (Sd.) Khalil -ur-Rehman Khan, J MUKHTAR AHMAD JUNEJO, J.

I have had the privilege of going through the judgment proposed to be delivered in these cases, by my learned brother Saiduzzaman Siddiqui, J. For the reasons being given below, I disagree with the conclusion being arrived at, by my learned brother and the reasons given in support of the same. Admittedly the late Nawab of Amb, namely, Nawab Muhammad Fareed Khan died on 20-12-1970, leaving behind Mst. Rehmatun Nisa as widow, Nawab Muhammad Saeed Khan (respondent No. 7) as son and Mst. Bibi Zaitoon (respondent No. 13) as daughter. Later on Nawab Muhammad Saeed Khan died on 14-7-1973 leaving behind two sons, namely, Salahuddin (respondent No.6) and Nasiruddin (respondent No.8) and one widow Mst. Bibi Fehmida (respondent No. 12) and four daughters viz. respondents Nos. 9 to

14. On death of Nawab Muhammad Fareed on 20-12-1970 his estate devolved upon his legal heirs; who were already holding the land within permissible limit set down by M.L.R.64. In view of increase in their holding, they were to file fresh declarations under M.L.R.64, but this was not done. Even the Court of Wards, in whose superintendence and control the property in names of legal heirs of Nawab Muhammad Fareed was, did not file declaration forms on behalf of the wards. The property in question remained under litigation from 1959 till 16-10-1988. Under a notification dated 27-7-1959 issued by the W.P. Land Commission, all the provisions of the Martial Law Regulation 64 (hereinafter mentioned as M.L.R. 64) were made applicable to Upper Tanawal area of District Hazara with effect from 7-2-1959. Hence on 21-4-1960 Nawab Muhammad Fareed filed declaration forms LC-I and LC-11 under M.L.R.64. In his declaration Nawab Muhammad Fareed declared his holding to be 88784.282 acres equivalent to 1796361.906 Produce Index Units (P.I. Units) and surrendered an area measuring 81292 acres equivalent to 1705201 P.I. Units. His forms LC-I and LC-II were scrutinised by the Deputy Land Commissioner, Hazara, who under his order dated 6-10-1960 resumed surplus land measuring 81292.307 acres equal to 1755200.906 P.I. Units, after allowing declarant Nawab Muhammad Fareed to retain an area equal to 33785.435 P.I. Units plus an area equal to 2190.351 P.I. Units. Under the same order dated 6-10-1960, the Deputy Land Commissioner while approving gift of 308.139 acres of land equal to 11562.009 P.I. Units by Nawab Muhammad Fareed in favour of his wife Mst. Rehmat under para. 9(f) of MLR-64, allowed him to increase area of the land being gifted to the extent of 12000 P.I.. Units. The Land Commissioner, Peshawar allowed Nawab Muhammad Fareed to make a gift of 263.543 acres of land equal to 5161 P.I. Units, to his sister Mst. Mehboob Sultana under para. 11 of M.L.R.64. The Nawab was also allowed to retain an area of 121.650 acres for orchards. Out of the surrendered land, an area of 16852.325 acres equal to 426254.902 P.I. Units, was transferred to Forest Department, Government of N.-W. F. P. Although the then Provincial Government of West Pakistan (Revenue and Rehabilitation Department) under a letter dated 16-4-1959 recognized Nawab Muhammad Fareed to be holder of the land of Sher Garh Darband in Upper Tanawal and transferred said land in his name, yet under a notification issued on 5-9-1959 under M.L.R.64 one M. Afzal was shown as 'existing owner" of the disputed land. This pushed Nawab Muhammad Fareed to litigation, and on 21-6-1961 he filed a suit for correction of relevant entry in the revenue record. Competency of said suit was challenged, in view of para. 27 of the M.L.R.64, but a Bench of this Court under the judgment reported in 1968 SCMR 262 held the suit not barred by M.L.R.64 and competent. Earlier title of Nawab Muhammad Fareed being sole owner of the property in Upper Tanawal, was challenged in Peshawar High Court under Writ Petition No.40 of 1961 filed by tenants of the lands, forming part of the said property. They were aggrieved by the Government of West Pakistan letter dated 16-4-1959 admitting rights of Nawab Muhammad Fareed as owner of the lands, claimed by him, in Upper Tanawal. Said writ petition was dismissed on 18-5-1962 and such dismissal was not interfered with, by this Court. Again in 1964 the tenants of the concerned lands, filed a fresh Writ Petition No.262 of 1964 in the High Court of Peshawar, challenging the gift of lands by Nawab Muhammad Fareed, as accepted by the Deputy Land Commissioner Hazara under his order dated 6-10-1960. Said writ petition too was dismissed and the Petition for Leave to Appeal against such dismissal, was dismissed on 24-11-1964 by a learned Bench of this Court. Again on 21-6-1965 the tenants filed suits claiming ownership in the same land and challenging the order/letter dated 16-4-1959 as well as the gifts by Nawab Muhammad Fareed. Said suits were dismissed on 15-7-1969 by a Senior Civil Judge, and such dismissal was maintained by the District Judge, Hazara as well as by the Peshawar High Court and was not interfered with by this Court. Thereafter, the tenants moved the Federal Land Commission, which decided on 28-1-1975 to invoke suo motu revisional jurisdiction and issued notices for 1-3-1975. Writ Petition No.98 of 1975 filed against said suo motu proceedings, was accepted by Peshawar High Court which took view that para. 29 of the Land Reforms Regulation, 1972 was not retrospective in effect. Such judgment was maintained by this Court on 16-10-1988 under a judgment reported in 1989 SCMR

6. Points of controversy which have arisen in this matter are:-- (i) Whether the order dated 6-10-1960 by the Deputy Land Commissioner, Hazara on the declaration forms submitted by Nawab Muhammad Fareed, was provisional? (ii) Whether the lands under litigation could be validly alienated in name of the Forest, Department, Government of N.-W.F.P.? (iii) Whether the application moved by respondent No.6 Salahuddin Khan before the Chairman, Federal Land Commission on 25-7-1990, was barred by any provision of the law of limitation or by laches? (iv) Whether the lands covered by the order dated 6-10-1960 were different from those involved in Civil Appeal No.2-D of 1966 decided by this Court on 27-11-1967 under the judgment reported in 1968 SCMR 262? (v) Whether the Federal Land Commission was not right in reopening the case by exercise of suo motu powers, and in directing the Deputy Land Commissioner to make heirs of Nawab Muhammad Fareed file declarations under M. L.R.64 and under M. L. R. 115? (vi) Whether Writ Petition No. 1523 of 1991 and connected petitions were rightly dismissed under the impugned judgment dated 7-12-1992 by learned Judges of the Peshawar High Court? In respect of point No.(i), Mr. Abid Hassan Minto, learned counsel for the appellants contended that the order passed on 6-10-1960 cannot be considered provisional in nature, because there was no change in the status of land under litigation as a result of the proceedings before the Civil Court. On the other hand, Mr. Abdur Rahim Kazi, learned counsel for the private respondents contended that the order dated 6-10-1960 was provisional in nature because on said date litigation in respect of the disputed land was pending before the Civil Courts. He added that on conclusion of civil litigation in 1988 or 1989, the private respondents were entitled to file a fresh choice in accordance with final decision by the Civil Court. In support learned counsel cited the case of Muhammad Fareed Khan v. Muhammad Afzal Khan (1968 SCMR 262). For proper understanding of the controversy, it would be proper to go through the order dated 6-10-1960. Under said order Nawab Muhammad Fareed was permitted to add any land in the land gifted by him to his wife Mst. Rehmatun Nissa so that the total holding of the said lady became 12000 units. There is nothing on record to show if any land was added, and if not what consequential orders were passed by the Deputy Land Commissioner or any other functionary. In this situation the order dated 6-10-1960 cannot be called permanent. Moreover, it appears from the judgment reported in 1968 SCMR 262 that on 21-6-1961 Nawab of Amb filed a suit for correction of entry in mutation record pertaining to the land under litigation, which was mutated in favour of M. Afzal Khan. This litigation was not over when the judgment reported in 1968 SCMR 262 was delivered. In said judgment the suit filed by Nawab of Amb on 21-6-1961 was held to be competent and not barred by anything contained in M.L.R.64. In said judgment note was taken of the fact that while passing the order dated 6-10-1960 the Deputy Land Commissioner was aware that a declaratory suit had been filed for determination of title in respect of the land in dispute. That certain salient features of the dispute had been placed before the Deputy Land Commissioner, which he set out in para. 4 of his order and on the basis of which he observed that it was outside his jurisdiction to investigate the dispute that had arisen over the ownership of the forest land in question. Commenting on said order dated 6-10-1960 the learned Bench consisting of four Judges, of this Court observed as follows:-- "It is true that When he decided to follow the Revenue entries, he did not say that he yeas doing so provisionally, but his order read as a whole cannot be understood in any sense other than that the action to follow thereon was to be in the nature of a provisional resumption. " In my humble view, this Bench of three Judges cannot take a view different from the one taken by a learned Bench of four Judges. Para. 50 of the Land Reforms Manual, Volume I shows that in respect of the lands which were the subject-matter of civil litigation, the surplus land could be provisionally resumed but not disposed of under para. 19 of the Regulation till the decision of the said suits instituted before the promulgation of the Regulation. In the very order dated 6-10-1960 it has been mentioned that the declarant Nawab of Amb had lodged a declaratory suit for establishing his right over the forest land in question. The Deputy Land Commissioner was, therefore, right in taking the view that it was outside his jurisdiction to investigate the dispute that had arisen over ownership of the forest land in question. It was at no stage case of the appellants that the land which is subject matter of controversy in these appeals, is distinct and different from .the land which was subject-matter of proceedings before this Court in Civil Appeal No.2-D of 1966. In their memo. of Writ Petition No. 1523 of 1991 filed in Peshawar High Court, the appellant described the disputed' property in para. 1(a) as follows:-- "That the land under discussion relates to an area measuring about 88784.282 acres equivalent to 1796361.906 PIUs as declared by Late Nawab Muhammad Fareed Khan which is situated in Upper Tanawal, District Mansehra. " In Civil Appeal No.2-D of 1966 decided under the judgment dated 27-11-1967 (reported in 1968 SCMR 262) the disputed land was described as follows:-- "The land is part of the Upper Tanawal tract regarding the proprietorship of which there was at one time a dispute between the Government and the Nawab of Amb." In the Writ Petition No. 1523 of 1991 as well as in Civil Appeal No.2-D of 1966 it-was mentioned that on 16-4-1959 the then Government of West Pakistan recognised Nawab Muhammad Fareed Khan as owner of the land involved in each of the said two litigations. All this shows that Writ Petition No.1523 of 1991 was in respect of the land covered by Civil Appeal No.2-D of 1966. The observations made by a learned Bench of this Court in the judgment of Civil Appeal No.2-D of 1966 were, therefore, binding on the parties in Writ Petition No. 1523 of 1991 which was later in time. Mere mention of "Kala Maira" in para. 4 of the order dated 6-10-1960 does not mean that the Writ Petition No. 1523 of 1991 was in respect of the land in Kala Maira only. Para. 4 of said orders shows that Nawab Muhammad Fareed raised objection against deletion of 2017.562 acres of land in Kala Maira from "Fard Badr", while his L.C. Form I was being scrutinized. In the operative part of the order, the words "Kala Maira" do not appear. The declaration under M.L.R.64 was filed in respect of the land, much more than 2017.562 acres. it would therefore be a far-fetched notion to hold that the land covered by Civil Appeal No.2-D of 1966 is distinct and different from the land in controversy in present appeals. Perusal of the order dated 6-10-1960 would show that the Deputy Land Commissioner chose to leave grievance of Nawab Muhammad Fareed undecided regarding treating of 2017.562 acres of his land as Forest lands due to pendency of a civil suit regarding the same. Mention of a civil suit in the order dated 6-10-1960 shows that such a suit was filed before 6-10-1960. Obviously it does not refer to a suit filed on 21-6-1961. It is crystal clear from the order dated 6-10-1960 that a suit was pending in respect of the disputed land since before 6-10-1960. It was precisely for this reason that the Deputy Land Commissioner did not determine title of Nawab Muhammad Fareed in 2017.562 acres of forest land. All these facts and circumstances lead one to an irresistible conclusion that the order dated 6-10-1960 was a provisional one, in terms of paragraph 50 of the Land Reforms Manual, Vol.1. Point No.I(i) is determined accordingly. Point No.(ii) has become easy to be determined after holding of the order dated 6-10-1960 to be provisional in nature. The bar on disposal of surplus land, in cases where final adjudication of the rights of the litigants was not made, is contained in sub-para. (i) of paragraph 50 of Land Reforms Manual, Vo1.I, sub-para. (i) reads as below:-- "(i) Surplus area should be provisionally resumed but not disposed of under paragraph 19 of the Regulation till the decision of the civil suits instituted before the promulgation of the Regulation .... " In the circumstances, the surplus land could not have been alienated in favour of Forest Department and point No.(ii) is found in the negative. In respect of point No.(iii) it is to be noted that the declaration forms under M.L.R.64 were filed by Nawab Muhammad Fareed Khan on 21-4-1960, while order on the same was passed by the Deputy Land Commissioner on 6-10-1960. As against this, it was on 25-7-1990 that Salahuddin moved application before the Chairman, Federal Land Commission (hereinafter mentioned as the Chairman) seeking filing of fresh forms under M.L.R.64. On the same date viz 25-7-1990 the Chairman received report of N.-W.F.P. Inspection Team of the Federal Land Commission proposing passing of judicial orders on suo motu side, as follows:-- "

1. The Deputy Land Commissioner, Mansehra may be directed to pass final orders under M.L.R.64, in respect of heirs of Nawab Muhammad Fareed Khan and Rehmay-un-Nisa Begum (wife), Nawab Muhammad Saeed Khan (son) and Bibi Zaitoon (daughter) on 20-12-1970 and choice given to the present heirs including the Land (Dhaka Darakhtan) surrendered by Nawab Muhammad Fareed Khan and transferred by the Land Commission to the Forest Department and 2804 acres transferred to WAPDA. Only that land should remain with the Forest Department and WAPDA which is not retained by the heirs of Nawab Muhammad Saeed Khan.

2. After that is done final order of resumption in respect of fresh inheritance cases of the heirs of Nawab Muhammad Saeed Khan died in July, 1973 be passed and choice given to the heirs under M. L.R.115 according to the present law.

3. After this is done final order of resumption under Act II be passed in respect of heirs of Nawab Muhammad Saeed Khan and choice given according to the existing law. " On the basis of said report dated 25-7-1990, the Chairman took up together nine cases of heirs of Nawab Muhammad Fareed for suo motu revision and passed the order dated 7-8-1990. Under said order the Deputy Land Commissioner was called upon to take certain steps, after the matter was decided by this Court. I This shows that the property in question was under litigation. Order by the Chairman dated 7-8-1990 further shows that each of the heirs of Nawab Muhammad Fareed was holding on 20-12-1970 land equivalent to 36000 P.I. Units, and with devolving of land of Nawab Muhammad Fareed on them by inheritance, holding of each heir exceeded the requisite limit of 36000 P.I. Units fixed by M.L.R.64, and hence each of the heirs was required to file fresh declaration forms under the said M.L.R. As per said order, this was not done -for the reason that in 1970 the property was under the administrative control of Court of Wards, which too, did not file any declaration form on behalf of the heirs. Another reason given in said order was, the start of litigation regarding the dispute over title in various Courts, which litigation ended with the decision given by this Court that Nawab Muhammad Fareed was the sole owner of the property in the Upper Tanawal area. Hence till final determination of the question of title, the persons deriving interest in the property through Late I Nawab Muhammad Fareed, could not have filed any declaration under M.L.R.64. Moreover the property in question was under the superintendence of the Court of Wards, who had to file necessary declaration. The legal heirs of Late Nawab who were minor, had legal disability to file a declaration under M.L.R.64 and in their case the period of filing the declaration would commence after their disability had ceased to exist, as per section 6 of Limitation Act. It is a settled position of law that the period of limitation does not run against a minor. Even pendency of the litigation in a case of this nature, would extend the period of filing of a declaration in view of para. 50 of the Land Reforms Manual, Volume

1. In the circumstances, application of the respondent No.6 before the Federal Land Commission was not barred by any provision of law of limitation or by laches, and point No. (iii) stands decided accordingly. Point No.(iv) has been partly discussed. The order dated 6-10-1960 relates to the lands owned by Nawab Muhammad Fareed and situated in Upper Tanawal, District Hazara. The lands covered by Civil Appeal No.2-D of 1966 j are situated in Upper Tanawal Tract of District Hazara as already noted. Said appeal makes mention of the order dated 6-10-1960 passed by the Deputy Land Commissioner. The conclusion is inescapable that both the litigations relate to same lands of Upper Tanawal and this point is decided accordingly. As regards point No.(v), it may be observed that the Federal Land Commission exercised suo motu powers of revision on the basis of the report dated 25-7-1990 submitted to it by N.-W.F.P. Inspection Team. On the Same date viz. 25-7-1990, the respondent No.6 moved his application. Here again reference to para. 50 of the Land Reforms Manual, Vol. l becomes necessary. It shows that where the land was under litigation and the decision was likely to take a long time, the holdings under M.L.R.64 should not be determined. In such cases land should be resumed on provisional. basis until the final adjudication of the rights of the litigants, as added in para. 50 (ibid). In the present case the litigation in respect of the land in question was pending, as already mentioned and had gone up to this Court. The case of tenants was finally decided by this Court on 16-10-1988 under the judgment reported in 1989 SCMR

6. It was in consistency with the instructions issued by the West Pakistan Land Commission on 3-3-1960 that the provisions of MLR-64 were to be operated afresh, after conclusion of the litigation determining rights of the parties. In the circumstances the Federal Land Commission was within its competency to take appropriate action as envisaged by law. Consequently the order dated 7-8-1990 passed by the Chairman, Federal Land Commission was unexceptionable. Point No.(v) is therefore found in the negative. In respect of the point No.(vi) .it would be profitable to reproduce following observation made in the impugned judgment by learned Judges in the High Court:-- "In the circumstances of the case, the learned counsel for the petitioners was unable to cite any law that after the decision of the Supreme Court the Federal Land Commission authorities could not continue with the proceedings in the exercise of their guo motu powers. The proceedings were yet to be finalised when litigations between the parties started before different forums. Meanwhile, Late Nawab died and the property of their minor heirs placed under administrative control of Court of Wards. Thus, their cause could not be vigorously pursued. Even on this ground, finality with respect to the estate of late Nawab under the Land Reforms Regulation were to take prolongation. Therefore, declarants could not be given an opportunity to represent their case, moreso as the matter in respect of the title of their predecessor to his property was pending in the Supreme Court. The authorities, therefore, rightly continued with the proceedings under the Reforms Regulation after the decision of the. Supreme Court. " The question of estoppel raised before the High Court has also been properly dealt with, in the following words:-- "The learned counsel for the petitioners contended that payment of the disputed land in the present case was made to the owners and as they had received the amount, they had acquiesced in the ownership of the Forest Department. The learned counsel for the petitioners was unable to show any receipt or any other proof that they had transferred ownership right of the disputed land to the Forest Department. The mere fact that the price of the surrendered land was deposited with the Land Commission for payment to the respondents would not mean that the respondents had transferred ownership right unless it is shown that they had received the amount against a receipt. " The High Court appears to have acted correctly in dismissing Writ Petition No. 1523 of 1991 and the connected writ petitions. For the foregoing reasons, I am of the view that all these appeals deserve to be dismissed. (Sd.). Mukhtar Ahmad Junejo, J. . By majority, the appeals are allowed with no order as to costs. (Sd. ) Saiduzzaman Siddiqui, J (Sd.) Mukhtar Ahmad Junejo, J. (Sd.) Khalil-ur-Rehman Khan , J. M.B.A./C-8/S Appeals allowed.