P L D 1970 Karachi 170 (PLP)

Usman Ghani for Petitioner No. 81 (in W. P. No. 651 of 1968). Shahabuddin for Petitioner No: 83 (in W. P. No. 712 of 1968). Shalkh Hyder for Petitioner No. 84 (in W. P. No. 7 of 1969). Mirza A. Beg for Petitioner No. 85 (in W. P. No. 111 of 1969). Muhammad You of Memon for Petitioner No. 86 (in W. P. No. 182 of 1969). Azizuddin for Petitioner No. 87 (in W. P. No. 692 of 1968). A sad Bilgrami for Petitioner No. 88 (in W. P. No. 540 of 1968). Abdullah Shah for Petitioner No. 89 (in W. P. No. 84 of 1968). Qazi Akhtar, Additional Advocate‑General and Syed A. Sheikh for Respondents. Date of hearing : 27th May 1969. DORAB PATEL, J.‑

All above‑mentioned petitions have been filed to challenge the validity of a Notification dated the 6th April 1965 issued on behalf of the Chief Settlement Commissioner under Martial Law Regulation No. 89 as amended by Martial Law Regulation No. 91, therefore we shall dispose of them together by this judgment.

2. The facts material to these petitions are all the petitioners are transferees of agricultural land under the Displaced Persons (Land Settlement Act), 1958, land was allotted to them under the said Act. On the promulgation of Martial Law Regulation No. 84 they had to submit their claim for re‑verification and fresh allotments were to be made on the basis of such re‑verification which was to be made in the manner prescribed in the said Regulation. This Regulation was thereafter amended by Martial Law Regulations Nos. 89 and

91. Under them ceiling limits were fixed for the entitlements of claimants. Any lands held in excess of these limits had to be surrendered to the Central Government and the land thus surrendered vested in the Central Government, but the Chief Settlement Commissioner was authorised to frame a scheme for the disposal of the land which might be so surrendered. According, by a Notification dated the 28th December 1961 the Chief Settlement Commissioner framed a scheme under Martial Law Regulation No. 89, as amended by Martial Law Regulation No. 91, for the disposal of surrendered land whereby the persons who had surrendered it were given the first option to buy the land surrendered by them within one month from the date of the promulgation of the scheme, at Rs. 20 per produce unit, and were required to deposit 25 % of the said price immediately. The remaining 75 % had to be paid thereafter in 12 equal half‑yearly instalments. The scheme further stated "Failure to pay two successive instalments shall result in the cancellation of the sale." Later on changes were made in the scheme by a Notification dated the 1st February 1962. The material changes were that claimants had to intimate their option to purchase the surrendered lands not later than 28th February 1962 and the price for the purchase of the surrendered land was reduced from Rs. 20 per produce unit to Rs. 10 per produce unit. Additionally the allottees were given a further concession that they could pay the entire price in 20 equal half‑yearly instalments with interest at the rate of 6 % on any unpaid instalments. Subsequently, the scheme was again modified by a Notification dated the 6th April 1965. The time for the payment of the first instalment was extended to 31st January 1963 and 30 equal half yearly instalments were introduced in the place of 20 half yearly instalments, but the allottees were made to pay interest at 6 % per annum on the unpaid amount due from them and not on unpaid instalments as occupier. Another material change was that even if a claimant failed to pay two successive instalments, the sale was not liable to cancellation without giving the claiments, a further opportunity to clear their arrears. But instead of forfeiture, they were made liable to pay penal interest at the rate of 3 % per annum in addition to the normal interest of 6 % per annum on the overdue instalments.

3. All of the present petitioners had surrendered land under the scheme framed by the Chief Settlement Commissioner and had exercised their option for the purchase of the land surrendered by them before the revised scheme dated the 6th of April 1965 was announced ; therefore they objected to the changes in respect of interest in the revised scheme, but their objections were dismissed by the second respondent ; therefore, they have filed these petitions.

4. Learned counsel for the petitioners have submitted that all the petitioners had exercised their option to purchase the land surrendered by them in terms of the Notification dated the 28th of December 1961 as modified on 1st February 1962, therefore, the respondent could not retrospectively alter the terms and conditions contained in the said scheme to the detriment of the petitioners. According to counsel, the provision made in paragraph (4) of the revised scheme of 6th April 1965 according to which the petitioners had to pay interest on the unpaid amount of the sale price was therefore, illegal. Similarly, according to counsel, the provisions made in the said paragraph for the payment of penal interest was illegal, although it was combined with the concession that sales were not to be cancelled merely for non‑payment of instalments. The learned Additional Advocate‑General, who appeared on behalf of the respondents, admitted that the petitioners had exercised their option for the purchase of surrendered land under the Scheme notified in December 1961 as amended in February 1962 and that although A no formal agreements were prepared, the respondents had accepted the offer of the petitioners before the, said schemes were revised on the 6th of April 1965. According to him the offers of the respondents having been accepted before the Notification of the 6th of April 1965, was issued thereby became contracts and were binding on the petitioners as well as the respondents, with the result that the terms of the contracts could not be varied without the consent of the petitioners. As they object to the provisions for interest, in spite of the inseparable relation of these provisions to concessions, it follows that if the respondents could not unilaterally modify the contracts or enforce the new provisions of the revised scheme notified on the 6th of April 1965, the petitioners too have no right to object to the forfeiture provided in the earlier schemes. The Assistant Advocate‑General was obviously right and counsel for the petitioners had no answer to his contention. Our conclusion, therefore, is that each petitioner can make a choice between the scheme as it was when he accepted it and the scheme as modified subsequently on the 6th of April 1965 with all the advantages and disadvantages of the Schemes. After signifying his choice for one or the other, he will have to accept it in toto. Any order imposing the subsequent scheme on the petitioners without giving them a choice is without lawful authority and of no legal effect.

6. The above order disposes of all the petitions mentioned in the title of this judgment except Petitions Nos. 206 of 1968, 288 of 1968, 312 of 1968 and 313 of 1968 in which there are additional prayers which will have to be considered and disposed of later by a Single Bench. K. B. A.