P L D 1986 Karachi 623 (PLP)

In pursuance of this direction the Deputy Land Commissioner, after hearing the parties, passed the impugned order, the operative part of which reads as under :‑ "The cumulative effect of the entire evidence and perusal of relevant record lead me to one conclusion that disputed land viz. 237 acres Deh Domewali, Taluka Kashmore is a resumed piece of land. Accordingly I hereby order that the said land viz. 237 acres be disposed of under Land Reforms Policy under paragraph 18 of M. L. R. 115 of 1972 to the eligible persons." We have heard Mr. M. A. Rashid for the .petitioners, Mr. Muhammad Aslam Bhutto for respondents 3 to 18 and Additional Advocate‑General for respondents 1 and 2 at length. We have also gone through the relevant document produced by the parties. It is conceded by Mr. M. A. Rashid that land in question was resumed land under M. L. R.

64. This appears to be the legal view of the matter. The fact that the sale of 270 acres of land was regularised by the West Pakistan Land Commission in 1970 and the sale of 237 acres is alleged to have been regularised by the Chief Land Commissioner, Sind in 1982 which regularisation is accepted by the petitioners, itself shows that land is a resumed land and, therefore, Land Commission had disposed of or purports to dispose it of. The land resumed under M. L. R. 64, vested in the Government and was to be disposed of by the Land Commission‑ cons tituted under said M. L. R. or its delegates. Para. 19 of M. L. R. 64 deals with the sale and disposal of resumed land which reads as‑under :‑ "

19. Sale of resumed land.‑(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 subpara graph (1) at such rates as may be prescribed." This M. L. R. 64 was repealed by para. 32 of M. L. R. 115 promul gated in 1972. Sub‑para. (2) of this para. saves certain rights, obligations, liabilities, etc. acquired, accrued or incurred under M. L. R. 64 and sub para. (3) saves pending proceedings. Sub‑para. (4) which appears relevant to the present case provides :‑ "(4) Land vesting in Government under the repealed regulation and not granted to any person before the repeal thereof shall be disposed of or utilized by Government as far as may be in accordance with ‑ the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." Mr. M. A. Rashid contends that certain rights had accrued to the petitioners under M. L. R.

64. This claim is based on the allotment of the land to the petitioners in 1967 and delivery of its possession in 1966 -1967. It is admitted fact, that the petitioners were not tenants in cultivating) possession of the disputed land in 1958 which could entitle them to the sale of land under para.

19. Their subsequent possession in 1967 would not create any right and para. 19 as tenants. It is admitted fact that the allotment of land in 1967 was made to the petitioners by Gudu Barrage Colonization authorities and not by the Land Commission o its delegatee. In fact this allotment was not considered as legal by the Land Commission which had, therefore, to legalise it by subsequent order e of sale of 270 acres in 1970 and the sale of the present land in 1982. Therefore, the allotment or sale of the land by any authority which had no jurisdiction to sell the land to the petitioners in 1968 did not create any legal right in favour of the petitioners. In fact even the petitioners pray for declaration that they are lawful allottees of the land. Their allot ment by incompetent authority cannot be considered is lawful. There fore. no rights were created or accrued to the petitioners under M. L. R. 64 that could be saved by sub‑para. (2) of para. 32 of M. L. R.

115. Similarly the respondents do not claim to have been sold the land by any competent authority under M. L. R.

64. Thus, land in question remained undisposed of and, therefore, under sub‑para. (4) of para. 3 of M. L. R. 115 it had to be disposed of utilised as far as may be in accordance with Part V of M. L. R.

115. The finding of the learned C Deputy Land Commissioner, Jacobabad in the impugned order, that land had to be disposed of under para 18 of M. L. R. 115 does not appear to be wrong or illegal. Para. 18 of M. L. R. 115 may also be reproduced as under :‑ "

18. Grant of land to tenants.‑‑(1) Land which vests in Government under the provisions of paragraph 13 or paragraph 14 shall subject to the other provisions of this ‑ paragraph, be granted free of charge to the tenants who are shown in the Revenue Records to be in cultivating possession of it in Kharif 1971 and Rabi 1971‑72 or in the case of land vesting in Government on the basis of a declaration made pursuant to clause (ee) of sub‑paragraph .12, to the tenant who is shown in the Revenue Record to be in cultivating possession of it in the year immediately preceding such declaration. Provided that no land shall be granted to tenants, who but for the making of this Regulation, would have entitled to inherit land from any of the person from whom land has been resumed under this Regulation. (2) Where a tenant who is entitled to the grant of land under the said sub‑paragraph‑ (1) already owns any land, he shall be granted only so much land under the said sub‑paragraph which together with the land already owned by him equals an area of subsistence holding. (3) Where any land is not shown in the Revenue Records to be in cultivating possession of any tenant, during Kharif. 1971 and Rabi 1971‑72 it shall be granted to such tenant or other persons, owning less than a subsistence holding, and on such terms and conditions, as the Government may determine. It will be seen that in prayer No. (iii) the petitioners have prayed that the earlier order passed by Division Bench of this Court in C. P. No. 41 of 1982 be recalled. This petition has been filed under Article 9 of the Provisional Constitution Order, which after the revival of the Constitution, would disposed of under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. Though not so specifically worded, by this prayer the petitioners in fact seek declaration from this Court under Article 199 (1)(a)(U) of the Constitution which reads asunder :‑ "

199. Jurisdiction of High Court.‑(I) Subject to': the Constitution, a High Court may, if it is satisfied that no other adequate remedy is provided by law‑‑ (a) on the application of any aggrieved party, make an order‑ (ii) declaring that any act done or proceeding taken within the terri torial jurisdiction of the Court by a person performing functions in connection with the affairs of the Federation, a Province or a local authority hab been done or taken without lawful authority and is of no legal effect." It is contended by Mr. M. A. Rashid that the question for decision in C. P. 41 of 1982 involved disputed question of fact and law and, therefore, it was not a suitable subject for adjudication under the cons titutional jurisdiction of the High Court. In support he has relied on case reported in P L D 1968 S C

185. It was observed by their Lordships therein :‑ "It appears to me that disputed questions of fact and law, requiring investigation, arise for consideration in this case which would therefore, not be a suitable subject for adjudication under Article 98 of the Constitution. The appellant, must, therefore, be relegated to the remedy open to him by a regular civil suit, if so advised." This Court is not sitting as appellate Court and, therefore, cannot give any finding as to the suitability, propriety or otherwise of orderly passed by the earlier Division Bench in the said petition. This Court can only declare, that the order passed was without lawful authority or of no legal effect, if so proved by the petitioners. In fact it is not even alleged in the petition, that the order passed by the Division Bench of this Court was without lawful authority or of no legal effect. Mr. M. A. Rashid candidly conceded, that the learned Judges of the Division Bench had the authority to pasi the order in question but he only attacks the suit ability and propriety of such order under the circumstances of the case. Apart from the fact, that we cannot strike down or recall the order only on the point 'of propriety and suitability, it may be seen that admittedly the petitioners. who had the right oh appeal, did not file appeal against the said, order and allowed it to, acquire finality. Not only that they did not tile appeal but they, in pursuance of. the said order subjected themselves to the jurisdiction c)f the Deputy Land Commissioner and appeared to the proceedings before him. Only, because, they are not satisfied with the order passed by the Deputy Land Commissioner, it could not give them right to challenge the order of High Court which has acquired finality. In fact the learned Judges of the High Court have acted t in accordance with the principles laid down by their Lordships of the Supreme Court in the abovementioned case. Instead of deciding the question as to whether or not the sale of land in 1982 legally conferred any rights upon the petitioners, which involved question of fact and law, the learned Judges directed that Deputy Land Commissioner, a, delegatee of Land Commission, to decide the entitlement of the parties‑in accordance with taw. Though not so specifically stated in the order, .but such directions implied that the order of regularisation passed by the Land Commission. in 1982, was set aside by the High Court and Deputy Land Commissioner was directed to determine the title of the parties afresh in accordance with law. In the impugned order, the learned Deputy Land Commissioner has decided the law under which the rights of parties had to be determined but he has in fact failed to specifically determine the right^ of the parties, which he had to determine in pursuance of order of this Court, which is still valid and binding upon the parties as well as the Government. The rights of the parties with regard to land are yet to be determined by the competent authority viz. Deputy Land Commissioner who has been ordered by this Court, in exercise of its constitutional jurisdiction to so) determine. Under the circumstances we decline to grant the prayers. mentioned in sub‑paras. (f), (if) and (iii) of the prayer clause in the petition, but partly allow the petition to the extent that the Deputy Land Commis sioner, Jacobabad is directed to decide after hearing parties, entitlement, if any, of the parties under M. L. R. 115 within six months. In the circumstances the parties are directed to bear their own costs. This petition was disposed of by short order dated 19‑5‑1986. Above are the reasons in support of the said order. A. A. Petition partly allowed.