1996 PLP 1427 (SCMR)

MUHAMMAD BASHIR KHAN JEHANGIRI, J.

The facts of the case briefly are that the disputed land bearing Khasra NO.'2nT/419 measuring 14 acres situated in village Teri, District Karak, on having been surrendered under the provisions of West Pakistan Land Reforms Regulation, 1959 (Martial Law Regulation No.64) was granted to the respondents on 22-8-1959 on payment of purchase price on instalments basis. A sale agreement was duly executed between the Governor of West Pakistan and the respondents and registered on 26-6-1965. It is not denied that the respondents continued to pay the instalments till the Land Reforms Regulation, 1972 (hereinafter called as the Regulation) came into force. Paragraph 28 of the Regulation reads as under:-- "A grantee of land under the repealed Regulation shall be discharged from all liability in respect of any instalments payable by him under paragraph 19 of the said Regulation. Explanation.--For the purposes of this paragraph grantee of land means-- (a) A tenant, or a resident of the Baluch Area of Dera Ghazi Khan District referred to in the Pakistan (Punjab Boundary) Order, 1950 (G.G.O.No.2 of 1950), to whom land was granted under the sale scheme prescribed under the repealed Regulation; or (b) A tenant or small landower of the village concerned to whom land was granted under the 'upgrading scheme prescribed under the repealed Regulation. " The respondent had paid all the due instalments with effect from 3-8-1964 to 29-12-1971 which is substantiated by the document Exh.P.W.2/3. It appears that in view of paragraph 28 of the Regulation the payment of the instalments was stopped by the respondents. Without any show-cause, it appears that the land was resumed on the ground of respondents' failure to deposit the remaining instalments and was transferred by Mutation No. 117 dated 27-11-1974 to the Forest Department. The respondents filed a suit against the petitioners wherein, besides seeking a declaration of their title to and confirmation of their possession over the land in dispute, they also challenged the propriety and legality of the impugned mutation. The suit was resisted by the petitioners both on factual and legal plane. The learned trial Judge vide his judgment and the decree dated 23-4-1991 dismissed the suit. The respondents, feeling aggrieved, filed an appeal against the dismissal of their suit before the District Judge, who found that the respondents were not served with any notice before revoking/cancelling the grant of land and thus the petitioners had violated the principle of audi alteram partem; i.e. that nobody should be condemned unheard. In this case, according to the learned District Judge, the grantee was liable to pay penalty and there was no occasion for the petitioners to have cancelled the grant. In the result, the appeal was accepted, the judgment and the decree of the trial Court was set aside acid the suit of the respondents was decreed. Feeling dissatisfied, the petitioners filed a revision petition before the Peshawar High Court.

2. The contention of the learned Assistant Advocate-General that the respondents having failed to pay the instalments after 29-12-1971 were rightly proceeded against and resumption of the granted land was justified both tin law and facts did not find favour with the learned Judge in Chambers of the High Court in view of the provisions of paragraph 28 of the Regulation.

3. The petitioners seek leave to appeal against the revisional judgment of the High Court.

4. It is not disputed that the respondents were the grantees of the land in dispute. It is a common ground between the parties that they had been paying due instalments till 29-12-1971 but the payment was stopped on coming into force of paragraph 28 (ibid).

5. It would be seen from the baring reading of paragraph, 28 of the Regulation that the benefit of discharge from liability of any instalments payable under paragraph 19 of the repealed Regulation, namely. Land Reforms Regulation, 1959 was made available to the person who was a "grantee of land" on 11-3-1972 when the Land Reforms Regulation, 1972 was issued, in other words, the person entitled to the benefit was the one in whose favour a grant of land was subsisting on that day. The position of the respondents on 11-3-1972 as regards the land in dispute is concerned clearly was that the grant in their favour was subsisting. The respondents were, therefore, entitled to the benefit of paragraph 28 of the Regulation. Had the petitioners served the respondents with any notice before resumption of land and consequential transfer thereof to the Forest Department, the latter would have claimed the benefit of paragraph 28 of the Regulation and there would have been no occasion for the petitioners to have resumed the land and transferred it to the Forest Department.

6. The learned Judge in the High Court was, therefore, legally correct in extending the benefit of paragraph 28 of the Regulation to the respondents and consequential dismissal of their revision petition.

7. We are, therefore, of the considered view that the petitioners have not been able to make out a case for our interference. The petition is, accordingly, dismissed and the leave is refused. A.A/C-555/S Leave refused