P L D 1976 Quetta 15 (PLP)

AGHA ALI HYDER, J.-These 17 petitions, which will be disposed of by this judgment, have arisen in the following circumstances :-

1. On the 18th of March 1972, the Chief Martial Law Administrator promulgated the Land Reforms (Baluchistan Pat Feeder Canal) Regulation No. 117 which extended to the Districts of Kachhi and Sibi in the Province of Baluchistan and came into force at once. It applied to all lands within the command of the Pat Feeder Canal in the District of Kachhi and to the State lands within the command of the said Canal in Nasirabad, Sub-Division of Sibi District.

2. According to paragraph (4) of the said regulation, it was declared that "all land in the District of Kachhi, is and has always been State land and vests in Government free from all encumbrances". So will all the lands within the command of Pat Feeder Canal and Nasirabad Sub Division in Sibi District. and "any right or interest of any person in any land referred to, howsoever created, or acquired, existing immediately before the commencement of this regulation shall stand extinguished." According to paragraph 5, all the lands were to be resumed by the Board of Revenue and according to sub-paragraph (3) thereof : "Where, upon an application made to it in this behalf, the Board of Revenue is satisfied that any person had, immediately before the commencement of this regulation, any right or interest in the land which is subject to resumption under sub paragraph (1) and that the resumption of such land would have the effect of rendering such person indigent, the Board of Revenue may permit him to retain for his life, subject to such conditions as may be specified by the Board of Revenue, such area of the said land, not exceeding 32 acres, .as the Board deems fit. Then came paragraphs 6 and 7 which read as tender :- "

6. Land grants.-(1) The Board of Revenue shall grant lands resumed under paragraph 5 in the following order, namely :- (a) an area equal to ten per cent. of such land in Kachhi District, to be demarcated in such manner as may be determined by the Board of Revenue, shall be reserved for grant, on such conditions as the Government may direct, in the following order of preference, namely :- First to the families of members of the Defence Services of Pakistan who laid down their lives in any military operation or as result of enemy action during the year 1971 ; Secondly to the families of members of the Police Force who laid down their lives as aforesaid ; and thirdly to the members of the Defence Services of Pakistan recommended by the General Headquarters for the grant of such land ; (b) after the demarcation of land under clause (a), such lands in respect of which tenants had cultivating rights, immediately before the com mencement of this Regulation, shall be granted to such tenants ; and (c) the remaining land shall be granted in the following order of preference, namely :- First to persons whose applications for grant of land are approved under paragraph 7; secondly to those tenants who have not been granted land under clause (b) ; thirdly to joint tenants who have not been granted land under clause (b); fourthly to groups of tenants in joint possession of blocks of land ; and fifthly to landless persons. (2) The Board of Revenue may empower any authority or officer subordinate to it to carry out a notional division of any group or groups of tenants not being joint tenants, who are in joint cultivat ing possession of any block of land, into individual tenants for the purposes of grant of land to them under this Regulation. (3) The land granted to (a) a tenant or a landless person shall be thirty-two acres; (b) joint tenants consisting of a tenant and only one adult son in joint cultivation with him, shall not exceed sixty-four acres, and (c) joint tenants consisting of a tenant and two or more adult sons in joint cultivation with him, shall not exceed ninety-six acres. (4) Land in a mouza shall be granted to landless persons in the following order of preference :- (a) landless persons who are bona fide residents of such mouza; (b) landless persons who are bona fide residents of the Tehsil of which such mouza is a part ; (c) landless persons who are bona fide residents of the district of which such mouza is a part. (5) In the case of landless persons, if there are more applications, by any one class of such persons, than the land available for grant to them, the grant of land shall be made by drawing of lots in a public assembly preferably in the mouza. (6) Grant of any land under this paragraph shall be subject to such conditions as to payment of price and mode of recovery of such price as the Government may direct.

7. Grant of land to bonafide sanad-holders.-(1) Any person who imme diately before the coming into force of this Regulation had a right of interest in any land resumed under this Regulation may, within sixty days of the coming into force of this Regulation, apply to the Deputy Commissioner within whose district such land is situated, for grant of land to him. (2) If the Deputy Commissioner, after such inquiry as he deems necessary, is satisfied that the applicant had, immediately before the coming into force of this Regulation, a valid and subsisting right to any land, and that such person does not own or posses any other land having an area equal to or greater than that of the land in respect of which he has submitted his application, the Deputy Commissioner may subject to the provisions of the Land Reforms Regulation, 1972, grant to such person from the land resumed under this Regulation, land not exceeding the area of land in respect of which the applicant has submitted the application. (3) In determining whether the applicant had immediately before the coming into force of this Regulation a valid and subsisting right or interest in any land, the Deputy Commissioner shall, among other matters, take into consideration the following factors :- (a) Whether such right or interest is based on or supported by any authentic sanad granted by a competent authority, or any other reliable evidence ; (b) Whether the "applicant has, since first January 1953, and till the coming into force of this Regulation, been in continuous possession of the land in which he claims a right or interest ; (c) Whether the applicant has been paying the land revenue or other charges on such land. (4) No application shall be entertained by the Deputy Commissioner under this paragraph from or on behalf of a person claiming to have a right or interest in land in excess of an area equivalent to fifteen thousand produce index units unless such person has submitted a declaration in respect of such land under the Land Reforms Regulation, 1972, and has appended a copy of the said declaration with his application. (5) Where applications are made under sub-paragraph (1) within the period specified therein by different persons in respect of the same land, the Deputy Commissioner shall, subject to the other provisions of this paragraph, consider the respective claims of all such applicants before passing orders for grant of land. (6) Effect shall not be given to an order made by the Deputy Commis sioner under sub-paragraph (2) unless it has been confirmed by an officer not below the rank of a Commissioner of a Division."

3. It was provided in paragraph 10 that any person from whom the land had been resumed under this Regulation will not be entitled to any compensation. `The provisions of this Regulation and any rules or orders made thereunder were to take effect notwithstanding anything to the contrary in any other law or in any order or decree of a Court or tribunal or other authority, or in any rule or custom or usage, or in any contract, instrument, deed or other document, as provided by paragraph

3. According to paragraph 11, "all pending cases, including appeals and applications for revision or review, with respect to the land resumed under this Regulation, whether pending in the Supreme Court, in any High Court or in any other Court or Tribunal" were to abate forthwith ; and according to paragraph 12, no provisions of this Regulation or any rules or orders made thereunder, were to be called in question before any Court or authority. The only other material provision that need be referred now is the last paragraph, i e. paragraph 17 of the said Regulation, which gives the revisional power : "The President, or any person authorized by him in that behalf, may at any time, of his own motion or otherwise, call for the record of any case or proceeding under the Regulation which is pending or in which the Board of Revenue or any other authority has passed an order, for the purpose of satisfying himself about the correctness, legality or propriety of such an order, and may pass. such order in relation thereto as he thinks fit". It might also be mentioned that the Government was given the power to make rules under paragraph 15 for the purpose of carrying into effect the provisions of this Regulation, and in accordance therewith the rules were framed on June 8, 1972.

4. In consequence of the promulgation of this Regulation, the peti tioners, professing to be the owners of certain land detailed by them, filed applications under sub-paragraph (3) of paragraph 5 of the Regulation, and the Land Reforms Order who had, by Ordinance VIII of 1973 (Baluchistan), been substituted for the Deputy Commissioner of the District, granted on different dates the land applied for by the petitioners, subject to the confirmation of the competent authority as required under sub-paragraph (6) of paragraph 7 of the Regulation. It is alleged, that though more than 1' a year had passed, the confirmation proceeding had not been taken up for hearing by the Board of Revenue. Instead. on the 25th of September 1974, Shaikh Mohammad Rashid. Federal Minister for Agriculture, and the Chairman of the Federal Land Commission, had passed, behind the back of the petitioners, certain orders which were adverse to the rights and the interest of the petitioners, as a result of which there was a serious threat of dispossession from their land. A copy of the said document has been filed by the petitioners and is styled as "progress of work done under M. L. R. 117 in respect of disposal of land in Baluchistan Command .by Pat Feeder Canal". . The Chairman of the Federal Land Commission in the course thereof, had reprimanded the Land Reforms Officers for their nonchalant approach to their work and the callous way in which they had rejected thousands of applications of the claimant-tenants, in default, or through orders which were not even speaking orders. Inter alia, it mentioned that "out of 4,341 claims rejected by the two Land Reforms Officers there may be some applicants whose claims concern some of the land of the first category. All other applicants pertaining to the land of the second category had no contestants. The orders of the Land Reforms Officers are not passed on any objection from any other party. As such, there is no other party who could be aggrieved if the orders are set aside. I, therefore, in exercise of the powers conferred on me under paragraph 17

of M. L. R. 117, set aside the orders passed by the Land Reforms Officers rejecting the claims pertaining to the second category of land who have got no concern with the land which is the subject-matter of the first category of land . . . . . . . . . . . .". Further, it went on to say that "those applicants who can afford the proof of cultivation of some land are entitled to retain land up to the prescribed limit either under para graph 5(3) or paragraph 6(I)(b) of M. L. R.

117. It will, therefore, be necessary for the proper scrutiny of the claims that applications under paragraph 6(1)(b) should also be invited. The applications submitted under paragraph 5(3) and those received under paragraph 6(1)(6) should be disposed of together. If the claimants in the applications subject-matter of the instant suo motu revision, submitted under paragraph 5(3) are not found eligible under paragraph 5(3), these applications should be considered also for their eligibility under paragraph 6(1)(b) . . . . . . . . .". It is this Progress Report called by the petitioners an order, which has been challenged in some of the petitions. The other petitions challenge also a communication, of the Member, Board of Revenue, which is styled as "decisions/observations made by Sheikh Mohammad Rashid, Chairman, Federal Land Commission during his visit of Pat Feeder Area on 12th and 13th September 1974", which, apart from enumerating the observations made by the Chief Land Commissioner, also directed that all confirmations by the Commissioner, Sibi Division under para. 7(6) were to be stayed till further orders. It might as well be added that the Martial Law Regula tion was subjected to certain amendments through the Land Reforms (Baluchistan Pat Feeder Canal) Regulation (Amendment) Ordinance I of 1975, issued by the Government of Baluchistan on the 7th of June 1975. The material portion of the amendment might as well be enumerated as follows :-- "Amendment of paragraph S of the Regulation.-In the Regulation, in paragraph 5, after sub-paragraph (3), the following new sub-paragraphs shall be added: "(4) For the purpose of the permission to retain land under sub paragraph (3), the Board of Revenue may carry out a notional division of any group of persons who had applied jointly for the purpose. (5) The Board of Revenue may allot, transfer or sell any land for any public purpose or for a scheme or project to be executed by the Government. (6) The Ghair Mumkin land, that is such as cannot be brought under cultivation or, in the opinion of the Board of Revenue, is not to be brought under cultivation, shall not be resumed'." Amendment of paragraph 6 of the Regulation.-In the Regulation, in paragraph 6, in sub-paragraph (1),- (a) for the words "Kachhi District" the word "Pat Feeder Sub-Divi sion of Nasirabad District" shall be substituted ; (b) after the words in the following order of preference, namely-"The following shall be inserted, namely:-First to such category of persons, so much land, as the Federal Government may by notification in the official Gazette, direct" ; and for the words "first", "secondly" and "thirdly", the words "secondly", "thirdly" and "fourthly" shall respectively be substituted ; and (c) in clause (c), after the word "shall", the commas, words, figures and brackets, "subject to sub-paragraph (5) of paragraph 5, shall be inserted." Then came the Land Reforms (Baluchistan Pat Feeder Canal) Regulation (Amendment) Act VII of 1975, the material portion whereof is as follows :- "In the Regulation, in paragraph 6, in sub-paragraph (1)- (a) for the words "Kachhi District" the words "Pat Feeder Sub-Division of Nasirabad District" shall be substituted ; (b) after the words "in the following order of preference namely":-the following shall be inserted, namely :- "first to such category of persons, so much land, as the Federal Govern ment may, by notification in the official Gazette, direct ;" and for the words "first", "secondly" and "thirdly", the words "second ly", "thirdly" and "fourthly" shall respectively be substituted ; and (c) in clause (c), after the word "shall", the commas, words, figures and brackets, "subject to sub-paragraph (5) of paragraph 5", shall be inserted. (6) In the Regulation in paragraph 7,- (a) in sub-paragraph (2), for the words and comma "grant to such persons from the land resumed under this Regulation, land" the words and commas "approve the application of the applicant for the grant, from the land resumed under this Regulation of land" shall be substituted ; and (D) in sub-paragraph (5), after the words "passing orders" the words "approving applications" shall be inserted. The Land Reforms (Baluchistan Pat Feeder Canal) Regulation (Amendment) Ordinance, 1975 (Baluchistan Ordinance No. I of 1975) is hereby repealed" The rules framed in 1972, were also amended by notification dated the 14th of May 1975, which are not very consequential.

6. Mr. Khalid M. Ishaque, learned counsel for the petitioners in Writ Petition No. 72 of 1975, whose arguments came to be adopted by the other counsel in the remaining petitions, contended that Regulation No. 117 in question was overly discriminatory in nature as even in Regulation 115 which had been promulgated a few days earlier, with a like object for the rest of the country, except the centrally administered areas, the owners of the land were allowed to retain 12,000 to 14,000 produce index units of land and the resumed lands were distributed among the land less haris free of costs. This invidious distinction militated with the principles enshrined in Article 4 of the Constitution, which guaranteed that "to enjoy the protection of law, and to be . treated in accordance with law is the inalienable right of every citizen, wherever he may be . . . . . . . . . .". This Article 4, which was a codification of the judicial interpretation of "due process of law" of the American Constitution, was still applicable. As to how the same had been interpreted in Courts of law in America, he cited the cases of The Citizens' Saving and Loans Association of Cleveland, Chio v. Topeka City (29 Wall 655), Henrietta Davidson v. The Board of Administration of the City of New Orleans (96 U S 97). The State of Indiana v. The State of Kentucky (136 U S 1), Missourie Pacific Railway Co. v. State of Nebraska (164 U S 403), Chicago Burlington and Quincy Railroad Co. v. The City of Chicago (166 U S 224), Samuel Downes v. George Bidwell (182 U W 244) and Fred L. Dorr and another v. United States (195 U W 138). He also referred to certain passages from Thomas Cooley's Treatise on the Constitutional Limitation, Vol. II, VIlth Edn., pp. 737 to 738 and Wiloughby's Constitution of U. S. A., Vol. III, pp. 1689 and 1693. Weighty though these pronouncements and soothing comments are, it is not necessary to refer to them. They had better lie in State, in all their silkiness, as we have to live with sub-Articles (3) and (4) of Article 8 of our own Constitution. It is true that according to sub-Article (1) of Article 8, "any law, or any custom or usage having the force of law, in so far as it is inconsistent with the rights conferred by this Chapter, shall, to the extent of such inconsistency, be void". Sub-Article (2) has it that "the State shall not make any law, which takes away, or abridges the rights so conferred, and any law made in contravention of this clause shall to the extent of such repugnancy, be void. But then come sub-Articles (3) and (4) which read as follows :- "(3) The provisions of this Article shall not apply to- (a) any law relating to members of the Armed Forces, or of the police or such other forces as are charged with the maintenance of public order, for the purpose of ensuring the proper discharge of their duties or the maintenance of discipline among them ; or (b) any of the laws specified in the First Schedule as in force imme diately before the commencing day (or as amended by any of the Laws specified in that Schedule). and no such law nor any provision thereof shall be void on the ground that such law or provision is inconsistent with, or repugnant to any provision of this Chapter. "(4) Notwithstanding anything contained in paragraph (b) of clause (3), within a period of two years from the commencing day, the appropriate Legislature shall bring the laws specified in the First Schedule, not being a law which relates to, or is connected with, economic reforms, into conformity with the rights conferred by this Chapter Provided that the appropriate Legislature may by resolution extend the said period of two years by a period not exceeding six months."

7. As the Regulation has been included in the First Schedule of the Constitution, it will remain impervious to all challenges.

8. It was next contended by Mr. Khaiid M. Ishaque, that though the Regulation in its original form, might be permitted its intended immunity under the Constitution, yet it had been amended time and again by the Government of Baluchistan, and in the process, the Regulation had lost its halo of inviolability, lock, stock and barrel. The Regulation and its amendments bad, because of this, become matters justiciable in a Court of Law and the Courts would be within their rights to scrutinise its contents, in the light of Articles 4, 23 and 25 of the Constitution. It is not necessary to dilate on this aspect of the matter, as the now completely published case of Mehreen Zebun Nisa v. Land Commissioner, Multan and others (P L D 1975 S C 397), which dealt with M. L. R. 115, a sister Regulation "for the well-being of the peasantry" in the rest of the country, except the centrally administered areas, is a complete answer to it, as evidence from pages 432 and 440 of the report. The copy of the resolution of the Baluchistan Provincial Assembly dated July 15, 1975, has been placed on the record by the learned Advocate-General. It reads as under : "Under clause (4) of Article 8 of the Constitution of the Islamic Republic of Pakistan, the Provincial Assembly of Baluchistan resolves to extend the period of two years by a further period of 6 months for bringing the laws specified in the First Schedule of the said Constitution, into conformity with the rights conferred by Chapter If." It is also not disputed that the previous sanctions of the President bad been obtained for the various amendments made. Regulation 117 vide paragraph 15, also gave the power of framing rules to the Government, and the rules and the amendments therein are by the appropriate Legislature. The laws in question therefore can not be struck down on the ground of any inconsistency with the Fundamental Rights, as contained in the Constitution.

9. In the circumstances of the case, it will also not be necessary to advert to the submissions of the learned Advocate-General in regard to the effects of the Proclamation of Emergency, and the suspension 'of the Articles 23 and 25, or what was earlier urged by Mr. Khalid M. Ishaqae in that regard. It will also be isle to examine the consequences, if any flowing from the amendments, as pointed out by Mr. Khalid M. Ishaque, at considerable length.

10. It was further argued by Mr. Khalid M. Ishaque, that the claims of the petitioners, formerly granted by the Land Reforms Officers, and now to be approved by him under the amended scheme, gave the petitioners some rights, and those were put to jeopardy, as the confirmations by the Commissioners, had been put to cold storage, and now forbidden, as per instructions issued by the Member, Board of Revenue. The learned ,Advocate-General was denying the assertion, but rather in a hesitant way. He was later in touch with the authorities at Islamabad and then a cate gorical statement was made by Mr. Mohammad Irshad, O. S. D., attached to the Federal Land Commission, who was in attendance throughout the proceedings, that the confirmation proceedings under paragraph 7 of the Regulation, will be taken up in a matter of weeks. So even this apprehension in regard to the finalisation of their matter under the Regulation is removed.

11. I, therefore, find no substance in the petitions and dismiss them. The parties will bear their own costs. KHUDA BAKHSH MARRI, J.-I agree. S. Q. Petitions dismissed.