1992 PLP 1639 (MLD)

Dates of hearing: 26th February and 11th March, 1992. This judgment will dispose of W.Ps. 2262‑80, 2263‑80, 2204‑80 and 2205‑HO.as order impugned in all these writ petitions is that of the learned ,Senior Member of Federal Land Commission, dated 5‑12‑1979. Facts in brief are that British Cotton Growing Association Limited (hereinafter referred to as the B.C.G.A.) was granted lease of land measuring 7,221 Acres 2 Kanals in Tehsil Khanewal for 20 years by the Provincial Government in the year 1921. This lease was subsequently renewed in 1941 and 1963 respectively. On the promulgation of West Pakistan Land Reforms Regulation, 1959 (Martial Law Regulation No.64) the Chief Land Commissioner through his order, dated 30‑10‑1959 in the exercise of his revisional power allowed seven shareholders of B.C.G.A. to hold land up to the maximum permissible limit under the said law. Thereafter on the promulgation of MLR 115 in the year 1972, declarations were filed by the individual shareholders and the same were accepted by the Deputy Land Commissioner, Multan. They were allowed to retain land equivalent to 1400 index units in accordance with MLR

115. Again on the promulgation of Land Reforms Act, 1977 declarations were filed respectively and they were allowed to retain 800 maximum permissible produce index units. It is the case of the petitioner that subsequently on an objection raised by the Inspection Team of Federal Land Commission proceedings in the exercise of revisional jurisdiction under paragraph 29 of MLR 115 were pending against the petitioner. However, on the promulgation of Land Reforms Act, 1977 by virtue of section 25 thereof the aforesaid proceedings stood abated. It is stated by the learned counsel that subsequently on the strength of Notification, dated 23‑9‑1978, the proceedings earlier abated before the Federal Land Commission were resurrected. The Notification is as under: "No.I1‑1977/LR/1‑

78. In exercise of the powers conferred by section 25 of the Land Reforms Act, 1977 (11 of 1977), the Federal Government is pleased to direct that the proceedings in cases under paragraph 29 of the Land Reforms Regulation, 1972 pending before the Federal Land Commission of the commencement of the said Act, shall not stand abated." Thereafter, the learned Senior Member of the Federal Land Commission assumed the jurisdiction and passed the impugned order directing the Deputy Land Commissioner, Multan to re‑determine the holding of B.C.GA., treating it as one person and pass fresh 'order accordingly. Hence these Constitutional petitions. Learned counsel for the petitioner has argued that the assumption of jurisdiction by the Federal Land Commission ‑was illegal as through Notification the effect of section 25 of the Land Reforms Act, 1977 cannot be nullified by virtue of which the proceedings already pending stood abated. In support of his contention he has relied upon Federal Land Commission through its Senior Member Islamabad v. Sher Muhammad and others PLD 1990 SC 626 wherein the Hon'ble Supreme Court has upheld the decision of Sindh High Court declaring the aforesaid Notification' as ultra vires. The are inclined to hold that under above‑quoted section 25 the had the power to direct that a case or class of cases could not stand abated but it could not have issued the impugned Notification directing that all the cases which were pending before the Federal Land Commission before the enactment of the Act shall not be abated. The impugned Notification in fact purports to nullify the effect of section 25 of the Act as a whole and, therefore, it is ultra vires of the powers of the Federal Government." Learned counsel appearing for the Federal Land Commission Sheikh Ziaullah has not much to say on this issue. However, he has feebly argued that in view of section 12 of the West Pakistan Land Reforms Regulation, 1959 (MLR 64), the B.C.G.A. is to be treated as one person and as such its shareholders cannot be allowed to retain land individually. In reply learned counsel for the petitioner has pressed into service subsection (2) of section 12 of this Regulation to contend that each shareholder in these circumstances would be allowed to retain land to the extent of his share. Learned counsel Mr. Talib H.Rizvi appearing in this case has argued that the decision in these writ petitions at this juncture would only be of an academic interest as the lease period of B.C.G.A. has already expired by efflux of time. He has also reiterated the ground taken by the learned counsel appearing for the Federal Land Commission. I have considered the contentions and have gone through the impugned order. The question whether the lease period has expired or not and its consequent effects is not before me in these petitions. The only point involved in these petitions is whether the order of the Senior Member of Federal Land Commission passed on 5‑12‑1979 can be sustained in the facts of this case. I do not want to dilate upon the other issues raised by the learned counsel appearing for the Federal Land Commission for the first time in this case. The august Supreme Court has already, set at naught the Notification, dated 23‑9‑1978 on the basis of which the Senior Member, Federal Land Commission assumed the jurisdiction. Resultantly, the order, dated 5‑12‑1979 impugned in these writ petitions is declared to have been passed without lawful authority and of no legal effect. The parties are left to bear their own costs. However, this declaration shall not come in the way of the Federal Land Commission or the Government of Punjab to take appropriate action in accordance with law against the petitioner. AA./B‑13/L???????????????????????????????????????????????????????????????????????????????????????? Petitions accepted.