' CH. IJAZ AHMAD, J.--We intend to decide the following writ petitions by one consolidated judgment having similar facts and law and inter dependent upon each other.
(1) Writ Petition No.598 of 1990.
(2) Writ Petition No.2984 of 1999.
(3) Writ Petition No.2985 of 1999.
2. Brief facts out of which Writ Petition No.598 of 1990 arises are that petitioners Nos.1 and 2, namely Muhammad Sardar Khan and Muhammad Akram Khan, are the original owners of the land in question, who allegedly had transferred the land measuring 1469 Kanals, 12 Marlas in village Ismail Pur Ratika vide Mutation No.105 dated 29-8-1970 to their sister namely Farah Iqbal, respondent No.28. Similarly, petitioners Nos.1 and 2 had gifted agricultural land, measuring 4636 Kanals in village Ahmad Pur Mcleod Gang, vide Gift Mutation No.147 dated 28-11-1970 to their brothers Ghulam Mehar Ali and Muhammad Usman Khan, petitioners Nos.3 and 4. Petitioners Nos.1 and 2 submitted a declaration form before DLC concerned, who accepted the same and excluded the land mentioned in the above mentioned gift-deeds. The order of the Deputy Land Commissioners was reversed by the Land Commissioner vide order dated 9-6-1973, wherein aforesaid gifts were declared to be void. The petitioners being aggrieved, filed the revision petition before the Federal Land Commission, who dismissed the same vide order dated 17-2-1980. The petitioners, being aggrieved filed the following writ petitions before the Lahore High Court. (1)Writ Petition No.4486 of 1981. (2)Writ Petition No.4487 of 1981.
(3)Writ Petition No.5113-A of 1981 before the Bahawalpur Bench of this Court, which was re- numbered at principal seat as Writ Petition No.373 of 1981.
' The aforesaid writ petitions were accepted by the Division Bench of this Court vide consolidated judgment dated 2-4-2001. During the pendency of the aforesaid Constitutional petitions, the Land Reforms Act No.II of 1977 came into force. Petitioners submitted their declaration form before the Deputy Land Commissioners concerned, who allowed the petitioners to retain 8000 P.I. Units each and resumed the remaining excessive land vide order dated 8-8-1977 in village Kakuani and in Ahmad Pur Gateka. Resumed land was allotted to the respondents by the Deputy Land Commissioners vide orders dated 11-4-1979, 31-12-1979 and 3-4-1980, respectively. Land Commissioner, Bahawalpur exercising suo motu powers, under the Land Reforms Act, set aside the aforesaid orders vide order dated 14-8-1985 on the ground that the cases pertaining to the land of the declarants involved in the aforesaid mutations in the above mentioned villages are under litigation. The respondents/tenants, being aggrieved filed revision petition before the Chief Land Commissioner, who accepted the same vide order dated 6-10-1986. Petitioners Nos.1 and 2 filed an application before the Chief Land Commissioner to set aside the ex parte order on 24-3-1987, which is pending adjudication. The Chief Land Commissioner, during the pendency of the application of the petitioners for setting aside the ex parte order of the Chief Land Commissioner, has sent reference on 29-10-1987 to the Federal Land Commission on the ground that the cases with respect to the land have not yet been decided by the authorities qua the aforesaid gifts and the land has only been provisionally resumed, therefore, it could be allotted to the tenants or not.
The Chairman Federal Land Commission rejected the reference and confirmed the ex parte order dated 6-10-1986 vide order dated 1-3-1990, hence the present Writ Petition No.598 of 1990 for setting aside the aforesaid orders dated 6-10-1986 and 1-3-1990 of the Chief Land Commissioner and the Chairman Federal Land Commission.
3. Brief Facts, out of which the Writ Petitions Nos.2984 of 1999 (Muhammad Akram Khan petitioner) and Writ Petition No.2985 of 1999 (Muhammad Sardar Khan petitioner) arise are that the petitioners are declarants under Land Reforms Oct, 1977 and their holding was determined by the Land Commissioner under the provisions of Martial Law Regulations 115 of 1972 vide order dated 9-1-1973.
The petitioners had alienated parcel of land to their brothers and sisters by way of gifts. Gifts were declared void by the Authorities under the Land Commission up to the Chairman of Federal Land Commission. The petitioners also submitted their declaration form under Land Reforms Act No.II of 1977. The Revenue Field Staff erroneously did not show their land being affected by water logging and consequently productivity of the land was considerably low. According to the record maintained by WAPDA Scarp in 1962-63 water logging and salinity was about 85% and in the year 1976-77, it was 82%, therefore, the petitioners are entitled for the concession/reduction in the calculations of the Produce Index Units to the extent of 60%. Punjab Land Commission also issued Notification to this effect dated 4-2-1974, according to which PIUs of the land effected by "Sem" and "Thore" were reduced and the declarants were allowed the said concession in PIUs for determining of their holdings for the purpose of Land Reforms. Petitioners submitted 3 applications before the respondent on the basis of the aforesaid Notification. Deputy Land Commissioner, in March, 1984 sent a reference to the Director, Salinity Monitoring Directorate S. M.O. Canal Bank Mughalpura, Lahore requesting him to provide the information, position and percentage of "Sem" and "Thore" from 1963-64 and 1975 to 78 of the land owned by the petitioner in the following villages.
(1) Ahmad Pur Gang.
(2) Kakuani.
(3) Ismail Pur Ratika.
(4) Ahmad Pur Gatika.
(5) Wazira.
' Reports from the Revenue Staff were also called for ascertaining the correct position. The Revenue Staff submitted report to the Deputy Land Commissioner, which reveals that 40% to 80% land in question was uncultivated during "Kharif" 1969 to "Rabi" 1970. WAPDA Scarp also submitted report vide letter dated 22-4-1989, which reveals that most of the area in the aforesaid villages remained under water logging in the years 1968, 1973 and 1975 to 78 and also most of the areas of Mouza Wazirka was flood affected throughout the years. The report furthq reveals that 80% of the area owned by the petitioners/declarants was affected-by water logging and salinity. The respondents, m spite of the clear reports did not allow the concession of reduction of holding by redetermination and the Deputy Land Commissioner, despite the fact that he had accepted the reports of the aforesaid authorities, but did not give benefits of the same vide order dated 2-7-1989 and the application was dismissed merely on the ground that the same was flied at belated stage. The petitioners being aggrieved filed appeals before the Land Commissioner, Bahawalpur, who treated the same as revision and dismissed the same vide consolidated order dated 3-8-1994. Petitioners, being aggrieved filed the revision petition before the Chief Land Commissioner, who dismissed the same vide order dated 27-4-1995. The petitioners, being aggrieved filed revision petition before the Chairman, Federal Land Commission, who dismissed the same vide order dated 1-6-1999, hence the present writ petitions.
4. The learned counsel for the petitioners submits that the Division Bench of this Court has decided the question of law between the same parties vide judgment dated 2-4-2001 passed in Writ Petition No.373 of 1981, therefore, this Division Bench has to follow the order of the Division Bench or refer the matter to the Honourable Chief Justice for constituting Full Bench. In support of his contentions, he relied upon the following judgments;--
(1) The Province of East Pakistan v. Dr. Aziz-ul Islam PLD 1963 SC 296.
(2) The Province of East Pakistan and others v. Sirajul Haq Patwari and others PLD 1966 SC 854.
(3) Messrs Habibi Insurance Co. Ltd. v. Pakistan National Shipping Corporation 1999 CLC 1727.
(4) Multiline Associates v. Ardeshir Cowasjee and others 1995 SCMR 362.
' He further submits that the matter was not finally decided and the land of the petitioners was not finally determined by the Land Reforms Authorities and the respondents have no lawful authority to allot the Land in question to the respondents in view of the law laid down by the Honourable Supreme Court of Pakistan in a case reported as Qazalbash Waqf's case PLD 1990 SC 99. He further submits that the Land Reforms Authorities erred in law not to give benefit of notification dated 14- 2-1974 as the iand of the petitioner was affected by "Sem" and "Thore", therefore, it was the duty and obligation of the respondent authorities to allow the petitioners the concession at the time of calculation of the Produce Index Units of the land in question of the petitioner for the purpose of determining of their holding for the purpose of land reforms.
5. He further submits that petitioners submitted three applications before the Deputy Land Commissioner on 24-5-1973, 12-1-5-1975 and 2-7-1988. . First two applications were not decided by the D.L.C. And resumed the land of the petitioners provisionally without any notice to the petitioners.
Third application was dismissed on the ground that the same was filed at belated stage. Orders of D.L.C. Up to the level of Chief Land Commissioner were set aside by the Chairman Federal Land Commission as the petitioners filed revision petitions before the said authority vide order dated 20- 10-1996 and directed the D.L.C. To implement order dated 20-10-1996 and restored the land after giving 60% concession of produce index units on account of "sem and thore" affected land of the petitioners/declarants. After that land in excess of prescribed limit fixed under M.L.R. 115 and Land Reforms Act, if any, be resumed, if there is no other legal hitch. The order of the Chairman Federal Land Commission was implemented' by the D.L.C. Vide order dated 28-10-1996 according to which no excess land was left behind with the petitioners after providing concession of 60% on the basis of "sem and thore". D.L.C. Intimated Chairman Federal Land Commission qua implementation of the order dated 20-10-1996 vide letter dated 5-11-1996. Possession of the land in question was also taken by the petitioners by process of law and the mutation was also sanctioned in favour' of the petitioners on the basis of order of Chief Land Commissioner dated 20-10-1996 and 28-10-1996. He further submits that respondents being aggrieved filed Writ Petition No.4059 of 1996 and Writ Petition No.4060 of 1996 which were accepted and the cases were remanded to the Chairman, Federal Land Commission with the direction to decide the same afresh after providing proper hearing to all the concerned. The Chief Land Commissioner set aside the order dated 20-10-1996 vide impugned order dated 1-6-1999 without adverting to the order of D.L.C. Dated 28-10-1996 as the order dated 20-10-1996 was implemented by him through the said order. He further submits that Chairman Federal Land Commission erred in law to accept the revision petition of the respondents and reversed the earlier order without giving due effect to the Notification dated 14-2- 1974 merely on the ground that The Notification is relatable to Faisalabad district, whereas the said Notification was issued by the Punjab Land Commission on the reference of the Land Commissioner Sargodha Division. A copy of the same was endorsed to all the Land Commissioners and D.L.Cs except Land Commissioner, Sargodha. Therefore, said Notification is applicable in case of the petitioners. He further submits that impugned order' is in violation of Para.2(10) of M.L.R. 115 of 1972 as the D.L.C. Resumed the land of the petitioners without ascertaining the comparative productivity of the land of the petitioners which is statutory duty of D.L.C. To ascertain actual and physical position and classification of the land of the petitioners. He further .Submits that para.2(10) of the aforesaid Regulation is paramateria to section 9(3) of Land Reforms Act, 1977. He further urges that impugned order is in violation of the law laid down by the superior Courts. In support of his contention he relied upon Federal Land Commission and another v. Inayatullah and others 1978 SCMR 281 and Federal Land Commission v. Said Rehmat Shah 1984 SCMR 669. He further urges that the petitioners had filed two applications before the D.L.C. For redetermination of their units on 24- 5-1973 and 19-5-1975 but the D.L.C. Did not decide the same till date as is evident from para.10 of the order dated 20-10-1996 and para.10 of the order dated 1-6-1999. He further submits that third application filed by the petitioners on 2-7-1988 was entertained by the D.L.C. And called for the report from concerned department which was dismissed merely on the ground that the same was filed at a belated stage which orders were finally set aside by the Chairman, Federal Land Commission vide order dated 20-10-1996 and this fact was also mentioned in the impugned order dated 1-6-1999. The Chairman, Federal Land Commission erred in law to reverse its order , dated 20-10-1996 without adverting to the reports of the concerned departments which are attached with the writ petition as Annexure-D which clearly reveals that major portion of the land of the petitioners fell in the category of "sem and thore". He further submits that land of the petitioners is under litigation, therefore, respondents have no lawful authority to allot the same to the tenants till the land of the petitioners has been finally resumed under the law in view of section 9(3) of Land Reforms Act, 1977 read with para.18 of M.L.R. 115 of 1972. In support of his contention he relied upon Muhammad Hayat Ullah Khan v. Federal Land Commission PLD 1977 Lahore 166. He further submits that tenants have no right to agitate the matter before any authority on the well known principle of locus standi till the land has been finally resumed from the name of the petitioners under the law by the Land Reforms Authorities. In support of his contention he relied upon Muhammad Khan and others v. Khawar Naheed and others 1987 MLD 414. He further urges that petitioners have not given any choice qua surrendered land therefore, no final resumption order has been passed against the petitioners. In support of his contention he relied upon Mahmoona and others v. Ham Din and others PLD 1984 Lahore 228. He further urges that impugned order is not in accordance with section 4 of the Land Reforms Act. He further submits that principle of past and closed transaction is not attracted as no final resumption order of the land of the petitioner has been passed in view of mandatory provisions of Land Reforms Laws and principle laid down by the superior Courts.
Therefore, principle laid down by the Honourable Supreme Court in Qazalbash's case is attracted in all respects. Therefore, action of the respondents is without lawful authority. In support of his contention he relied upon the following judgments:-- ' Qazalbash Waqf and others v. Chief Land Commissioner PLD 1990 SC 99..
' Sardar Ali and others v. Muhammad Ali and others PLD 1988 SC 287.
' Sharifan Bibi v. Federation of Pakistan 2002 YLR 3320.
' He further submits that principle of past and closed transaction is not attracted in the present case as held by this Court in the following judgments on account of the distinguishing features of this case as no final order of resumption has been passed by the Authorities against the petitioners:-- ' Mst. Ulfat Jan v. Deputy Land Commissioner 2001 YLR 1539.
' Iqbal Hussain Qureshi v. Federal Land Commission 2002 YLR 1669.
' Chief Administrator Auqaf v. Federal Land Commission PLD 1994 Lahore 50.
' He summed up his arguments that impugned orders are without lawful authority and are liable to be set aside.
6. Mr. Zahid Hamid, Advocate for the private respondents submits that following writ petitions were filed by the parties qua the land in question:-- ' Writ Petition No.373 of 1981 Writ Petition No.4486 of 1981 Writ Petition No.4487 of 1981 Writ Petition No.598 of 1990 Writ Petition No.599 of 1990 Writ Petition No.2984 of 1999 Writ Petition No.2985 of 1999 Some of the aforesaid writ petitions were filed by the parties at Lahore High Court, Bahawalpur Bench. The petitioners submitted applications before the Honourable Chief Justice for transferring the aforesaid writ petitions at principal seat on the ground that there was no Deputy Attorney General appointed by the competent authority to defend the cases on behalf of Federation of Pakistan at Lahore High Court, Bahawalpur Bench. The said application was accepted by the Honourable Chief Justice. The aforesaid writ petitions were fixed before the Division Bench on 2-4- 2001. Writ Petitions Nos.373 of 1981, 4486 of 1981 and 4487 of 1981 were accepted by the Division Bench vide judgment dated 2-4-2001. The remaining writ petitions mentioned above were dismissed for non-prosecution vide orders dated 2-4-2001 respectively. The petitioner in Writ Petition No.599 of 1990 has not filed any application for restoration of the writ petition'till date. The petitioners in the remaining writ petitions (Writ Petition No.598 of 1990, Writ Petition No.2894 of 1999 and Writ Petition No.2895 of 1999) filed applications for restoration which were accepted vide order dated 16-4-2002 as the learned counsel of the respondents had no objection for restoration of the main writ petition subject to certain conditions. Original declarants Muhammad Sardar Khan and Muhammad Akram Khan have gifted lands to petitioners Ghulam Mehr Ali and Muhammad Usman Khan through Mutation No.147. They also gifted some land to their sister through Mutation No.105.
The gift mutations were declared void by the Land Commissioner vide order dated 14-6-1972. The aggrieved parties filed appeal/revision petition before the Chief Land Commissioner who remanded the case to the Land Commissioner. Subsequently, Land Commissioner declared Gift Mutation No.145 in favour of brothers of the original declarants void and Mutation No.105 qua sister was declared partially void. The aggrieved party again approached the Chief Land Commissioner who remanded the- case to the Land Commissioner. The Land Commissioner declared Gift Mutation No.147 as wholly void whereas he declared Gift Mutation No.105 qua sister partially void.
The petitioners being aggrieved filed appeal before the Additional Chief Land Commissioner who dismissed the same vide order dated 20-2-1975 and held both the Gift Mutations Nos.147 and 105 void. The petitioners being aggrieved filed petition before the Senior Member Federal Land Commission who dismissed the same vide order dated 17-2-1980. The petitioners being aggrieved filed Writ Petitions No.373 of 1981, Writ Petition No.4486 of 1981 and Writ Petition No.4487 of 1981, which were accepted by, the Division Bench vide judgment dated 2-4-2001. He further submits that competent authority under the provisions of M.L.R. 115 of 1972 resumed the land of the original declarants namely Muhammad Sardar Khan and Muhammad Akram Khan vide provisional resumption orders dated 15-5-1973 and 30-4-1975. The original declarants owned land measuring 542 acres, 4 Kanals equivalent to 15853 produce index units in Villages, Ahmadpur, Mcleod Ganj, Wazira Gaddoka, Ismail Rateka, Ahmadpur Gaddoka as determined by the Land Reforms Authorities on 20-12-1971 vide order dated 9-1-1973 and excess land was resumed vide order dated 9-1-1973 measuring 85 Acres, 4 Kanals and 1 Marla equivalent to 1853 produce index units under M.L.R 115 of 1972 which is subject matter of Writ Petition No.598 of 1990. He further submits that land measuring 85 acres, 4 Kanals and 1 Marla equivalent to 1853 produce index units was allotted to the tenants after resumption who are not party in these Constitutional petitions. This area was not under litigation.
7. He further urges that the petitioners/declarants owned land measuring 456 Acres, 7 Kanals, 17 Marlas equivalent to 12912 PIUs after deducting the gifted land by the petitioners to their brothers vide Mutation No.147 measuring 289 Acres 6 Kanals. And land measuring 91 Acres, 6 Kanals, 16 Marlas vide Mutation No.105 to their sister on 4-1-1977, which was resumed by the Land Reforms Authorities under the provisions of Land Reforms Act, 1977 vide order dated 8-8-1977 and finally the land of the petitioners was resumed by the Land Reforms Authorities under the Land Reforms Act, 1977 vide order dated 15-1-1978 equivalent to 3501 PIUs. Learned counsel of private respondents submits that area of 1853 PIUs was resumed free from all encumbrances from the petitioners Muhammad Sardar Khan and Muhammad Akram Khan as is evident from order dated 9-1-1973 passed by the D.L.C. Bahawalnager. He further submits that excess land from the petitioners was also resumed by D.L.C. Bahawalnagar vide order dated 8-8-1977 as is evident from Annexure-E attached with the writ petition which is to the following effect:-- "Khasrawise details of . The area alongwith the permanent installation structures and building thereon, if any, surrendered by the declarant Mohammad Sardar Khan son of Sardar Muhammad Iqbal Khan caste Chadhuka Resident of Ahmadpur Mcleod Ganj Tehsil Munchinabad District Bahawalnagar under the Land Reforms Act, 1977."
' He further urges that said note was also repeated by the D.L.C. In his order dated 15-1-1978. He further urges that the land in question in Mauza Kakuani was resumed from the petitioners which was not under litigation before any authority at the time of resumption which was allotted to the respondents by the competent authority vide orders dated 11-4-1979, 31-12-1979 and 3-4-1980 respectively. The Land Commissioner set aside the order of allotment in favour of the respondents on the application of the petitioners vide order dated 4-8-1985. The respondents being aggrieved filed appeal/revision before the Chief Land Commissioner who accepted the same vide order dated 6-10-1986. The petitioners submitted an application before the Chief Land Commissioner for setting aside order dated 6-10-1986. The Chief Land Commissioner Punjab sent a reference to the Chairman Federal Land Commission that land of the petitioners was provisionally resumed and therefore, said land could not be allotted to the respondents. The Chairman Federal Land Commission dismissed the reference and upheld the order of the Chief Land Commissioner dated 6-10-1986 vide order dated 1-3-1990. The petitioners being aggrieved filed Writ Petition No.598 of 1990 before this Court. Learned counsel of the respondents submits that land in question which was allotted to the respondents was not under litigation therefore, principle of past and closed transaction is attracted in this case in all force and principle laid down by the Honourable Supreme Court in Qazalbashi's case PLD 1990 SC 99 is not attracted. The judgment of the Division Bench of this Court in the connected writ petitions is not applicable in the present case in view of the distinguished facts of the present case. He further submits that land of the original declarants with respect to the gifts executed by the original declarants in favour of their brothers and sister vide Mutations Nos.147 and 105 are under litigation whereas the land which was resumed by the Land Reforms Authorities under the provisions of Land Reforms Act is not under litigation and the impugned orders are in accordance with para.31 of MLR-115 of 1972. He further submits that petitioners filed an application before the Chief Land Commissioner for setting aside allotment letters issued by the competent authorities in favour of the respondents after 15 years. He further submits that notification dated 9-6-1972 attached with the writ petition as Annexure-D is not applicable in case of the petitioners. He further submits that case of the petitioners does not fall within the parameters prescribed under Notification dated 9-6-1972 which is attached with the writ petition as Annexure-D. He further urges that subsequent notification was also issued on 11-5-1973 and the case does not improve the status of the petitioners. He further urges that competent authority also issued notification dated 14-1-1974 according to which the instructions on the other hand are that unless a legal stay order is issued, the work of allotment of land the title of which is not in dispute should not be stopped under any circumstances. Therefore, action of the authorities below is in accordance with law in terms of the subsequent notifications as no stay order was granted by any authority in favour of the petitioners. He further submits, that section 9(3) of Land Reforms Act is also not attracted in case of the land in question. He further submits that judgment of the Division Bench in Writ Petition No.373 of 1981 dated 2-4-2001 is not applicable in the present case as the land in question was resumed subsequently under the provisions of the Land Reforms Act. He further submits that petitioners did not appear in these cases on 21-4-2001 and allowed the Division Bench to dismiss these writ petitions for non-prosecution. Therefore, respondents are not debarred to agitate the matter before this Court that judgment of the Division Bench dated 2-4- 2001 in Writ Petition No.373 of 1981 is not in accordance with law as the Deputy Attorney General did not enter appearance on the basis of which, the cases were transferred from Bahawalpur Bench to the principal seat. He further urges that orders of the authorities below are in accordance with the law laid down by the superior Courts. In support of his contention he relied upon the following judgments:-- ' Qazalbash Waqf v. Chief Land Commissioner Punjab PLD 1990 SC 99.
' Aacher and others v. Dur Muhammad Usto and others 2001 SCMR 958.
' Syed Muzammal Shah and others v. Deputy Land Commissioner PLD 2001 Peshawar 92, ' 2001 CLC 654 "There is no judgment at this page"
' 2000 YLR 1995; "There is no judgment at this page"
' Chief Administrator of Auqaf v. Federal Land Commission PLD 1994 Lahore 50.
' Begum Shehla Leghari v. Govt of Punjab 1996 MLD 540.
' Chief Land Commissioner v. Chief Administrator Auqaf PLD t998 SC 132.
' He further submits that Land Reforms Authorities issued various notices to the petitioners to give their choice for the purpose to retain the land in question but the petitioners failed to exercise their discretion in spite of the notices issued by the competent authority, therefore, contention of the learned counsel of the petitioners that petitioners were not allowed to exercise their discretion of choice to retain the land in question is not in accordance with law laid down in Tariq Mahmood v.
Sh. Masood Ellahi PLD 1979 Note 124. He further submits that land in question was resumed by the competent authority from the petitioners vide order dated 15-1-1978 under Land Reforms Act, 1977 which was allotted to the petitioners under the provisions of Land Reforms Act vide orders dated 11- 4-1979, 31-12-1979 and 3-4-1980 respectively. The petitioners filed application before the D.L.C. For re determination of their holding while giving benefits to the petitioners under "sem and thore" policy issued by the competent authority on 2-7-1988. The D.L.C. Directed the WAPDA Authorities to submit report qua the status of the land of the petitioners vide order dated 8-3-1989. WAPDA Authorities submitted report in terms of aforesaid order on 20-4-1989 which is attached as Annexure-D in Writ Petition No.2984 of 1999. The D.L.C. ,dismissed the same as the petitioners filed application at belated stage vide order dated 2-7-1989. The petitioners being aggrieved filed appeal/revision before the Land Commissioner who dismissed the same vide order dated 3-8- 1994. Subsequently the petitioner filed revision petition before the Chief Land Commissioner who also dismissed the same vide order dated 27-4-1995. The petitioners filed revision petitions before the Chairman Federal Land Commission who accepted the same vide order dated 20-10-1996. The respondents being aggrieved filed Writ Petition No.4059 of 1996 and Writ Petition No.4060 of 1996.
The said writ petitions were accepted by this Court vide judgment dated 20-10-1998 and remanded the case to the Federal Land Commission to decide the same afresh. The Federal Land Commiision dismissed the revision petitions of the petitioners vide order dated 1-6-1999. The petitioners being aggrieved filed Writ Petition No.2984 and Writ Petition No.2985 of 1999 against the said order. Learned counsel of the respondents submits that the petitioners filed aforesaid application after 15 years after allotment of the land to the respondents which was rightly dismissed by the Tribunals below as time-barred. He further submits that Revenue Record does not depict at all that the land in question falls in the category of "sem and thore" as is evident from Annexure-A attached with the written statement. He further submits that petitioners did not submit any application before the Land Reforms Authorities that the. Land of the petitioners falls in the category of "sem and thore" in the years 1973 and 1975 as is evident from the contents of applications which is afterthought as is evident from the impugned orders. He further submits that according to booklet "Produce Indices" for Districts of West Pakistan published under the authority of West Pakistan Land Commission, benefit of "sem and thore" is only awarded in three Districts Sheikhupura, Gujranwala and Faisalabad. Bahawalnagar District is not granted this concession. He further submits that Land Commissioner Sargodha Division asked clarification from the Chief Land Commissioner vide letter dated 16-11-1973 which was replied by the Secretary Punjab Land Commission to the Land Commissioner, Sargodha Division under the subject "Concession on account of "sem and thore" affected area in Lyallpur District" copy of the same was sent to all the Land Commissioners in the Punjab (except Sargodha)
2. All D.L.Cs. In the Punjab;
3. All Assistant Land Commissioners in the Punjab:- was necessary considering the delegation of powers by the Punjab Land Commission according to which in the case of a person holding a land in Lyalpur now Faisalabad and other Districts, his holding was to be determined by the D.L.C. Of the District where he held major portion of his holding. Therefore, case of the petitioners does not fall in the clarification issued by the Secretary Punjab Land Commission vide letter dated 14-2-1974. He further submits that report of the WAPDA Authorities is also general in nature. Even that report does not reveal that the land in question allotted to the respondents in Village Kakuani falls under the category of "sem and thore", therefore, orders of the Tribunals below are in accordance with law. He further submits that petitioners secured the possession of the land in question through police as the order of the Member Federal Land Commission dated 20-10-1996 was implemented by the D.L.C. Vide order dated 28-10-1996 at the time of arguments but this fact was concealed by the petitioners in the contents of the writ petitions. Therefore, writ petitions are liable to be dismissed.
8. Mr. Jehangir A. Jhoja, Advocate of the Commission submits that Federal Land Commission has already filed C.P.L.As. Nos. 1891, 1892 and 1893 before the Honourable Supreme Court against the order of the Division Bench dated 2-4-2001 which are pending adjudication.
9. Mr. Muhammad Hanif Khattana, learned Additional A.-G. Also submits that orders of the Tribunal below are in accordance with law.
10. Learned counsel for the petitioners in rebuttal submits that the order. Dated 20-10-1996, of the Federal Land Commission was implemented in letter and spirit by the Land Reforms Authorities vide order dated 28-10-1996. He further urges that the respondents have challenged the order dated 20-10-1996, only against the original owners, present petitioners Nos.1 and 2 in Writ Petition No.598 of 1990, and did not challenge the order dated 20-10-1996, against petitioners Nos.3 and 4 in their writ petitions, therefore, order dated 20-10-1996, is final qua the present petitioners Nos.3 and 4 as petitioners Nos.3 and 4 secured the land on the basis of order dated 20-10-1996, which has been implemented in letter and spirit by the Land Reforms Authorities vide order dated 28-10-1996.
He further submits that the respondents have not challenged the order dated 28-10-1996, till date, therefore, the impugned order dated 1-6-1999, is without lawful authority as the Chairman Federal Land Commission did not consider the effect of order dated 28-10-1996 in the impugned order dated 1-6-1999. He further urges that petitioners Nos.3 and 4 secured exemption on the basis of "Sem and Thore" as is evident from the order dated 20-10-1996, therefore, the impugned order of the Chairman, Federal Land Commission is hit by Article 25 of the Constitution of the Islamic Republic of Pakistan, 1973, qua petitioners Nos.1 and 2. He further urges that the concession prescribed under "Sem and Thore" Policy of the Land) Reform Authorities is applicable in District Bahawalnagar in view of the conduct of the Land Reforms Authorities. He further submits that book-let was prepared by the Land Reforms Authorities under the provisions of Martial Law Regulation No.64, which came into existence on 7-2-1959. According to the note mentioned in the book-let with regard to Lyallpur, Gujranwala and Sheikhupura the learned counsel for the respondents has taken a stance that it is applicable only to three districts is not in consonance with the introductory part of the book-let, which is applicable to various districts and, in fact, it is applicable in whole of Pakistan read with letter of the Punjab Land Commission dated 14-2-1974, attached in Writ Petition No.2984 of 1999 at page 24. In support of his contentions he relied upon Federal Land Commission v. Inayatulla 1978 SCMR 281. He further submits that it is ,the duty and obligation of the Land Reforms Authorities to determine the units of the original declarant after spot inspection, which exercise was not done in the case of the original declarants, which is mandatory requirement, but this fact was not considered by the Chief Land Commissioner in the impugned order and is not in accordance with the law laid down by the superior Courts coupled with the fact that the original declarants had filed applications for re-determination of the units before the Deputy Land Commissioner on 24-7-1973 and 14-5-1975. The Deputy Land Commissioner resumed the land provisionally on 30-5-1975 without notice to the original declarants, therefore, the impugned order is not sustainable in the eye of law and is not in accordance with the law laid down by the superior Courts. In support of his contentions he relied upon Federal Land Commission v. Said Rehmat Shah 1984 SCMR 669. He further urges that the land reform laws are confiscatory in nature, which should have been construed strictly and benefit should be given to the original declarants as the land of the original declarants had been taken without compensation, but this fact was not considered by the Chief Land Commissioner in its impugned order. He summed up his arguments by submitting that no period was fixed to file an application before the Land Reforms Authorities to avail the concession on the basis of "Sem and Thore". The Land Reforms Authorities have not notified the same through the Gazette notification nor publication to this effect has been made. Original declarants have not submitted their choice to retain the land of their choice in the five villages. The land in question was under litigation, that is why the provisional resumption order was passed by the Land Reforms Authorities qua the land in question no decisive steps could be taken till the final order of resumption could be passed by the competent authority and in the present case no final resumption order has been passed, therefore, the impugned order is without lawful authority.
11. We have given our anxious consideration to the contentions of the learned counsel for the parties and perused the record.
12. It is better and appropriate to reproduce the basic facts in chronological order and Constitutional petitions filed by the parties before this Court with regard to the orders passed by the Land Reforms Authorities:--
(i) Muhammad Sardar Khan and Muhammad Akram Klijn, original declarants, owned land equal to 15853 PIUs on 21-12-1971, in five villages, namely, Ahmadpur Mcleod Gang, Wazira Goddoka, Kakuani, Ismailpur Reteka and Ahmed Gaddoka. Aforesaid original declarants had filed declaration forms under the provisions of MLR-115 of 1972 before the Deputy Land Commissioner concerned. The Deputy Land Commissioner passed two resumption orders dated 9-1-1973 qua the original declarants, Muhammad Sardar Khan and Muhammad Akram Khan in the following terms:-- "The excess area of 1853 Produce Index Units is hereby resumed free from all encumbrances. The declarants is directed to submit his choice of the area to be retained and surrendered on 13-1-1973.
The area surrendered by him should be verified.
"The excess area equal to 1853 PIUs was resumed from each of the aforesaid declarants in the following- village: -- ' Ismailpur Rateka Ahmad Ghadhuka.
(ii) Aforesaid original declarants had gifted the land measuring 2318 Kanals each in village Ahmadpur Mcleod Ganj to their brothers, namely, Ghulam Kehr Ali Khan and Muhammad Usman Khan (petitioners Nos.3 and 4 in Writ Petition No.598 of 1990) vide Mutation No. 147 dated 28-11-1970.
(iii) Aforesaid declarants had also gifted land measuring 734 Kanals, 16 Marlas in village Ismailpur Rateka to their sister, namely, Farrah Iqbal, vide Mutation No.105, dated 29-8-1970.
(iv) Aforesaid gifted land was not resumed by the Deputy Land Commissioner, Bahawalnagar, vide orders dated 9-1-1973, from the original declarants.
(v) The aforesaid gifts executed by the original declarants in favour of their brothers and sister were declared void by the Additional Land Commissioner vide order dated 20-2-1975.
(vi) The original declarants being aggrieved filed revision petitions before the Federal Land Commission, who dismissed the same vide orders dated 17-2-1980.
(vii) The original declarants and donees being aggrieved filed the following Constitutional petitions before this Court:--
(1) Writ Petition No.373 of 1981
(2) Writ Petition No.4486 of 1981
(3) Writ Petition No.4487 of 1981 ' which were decided by this Court vide judgment dated 2-4-2001 and held that the proceedings pending before the Land Reforms Authorities are deemed to have abated in respect of the aforesaid cases as the provisions of the Land Reform Regulations were declared repugnant to the Injunctions of Islam in Qazalbash Waqf and others v. Chief Land Commissioner Lahore and others PLD 1990 SC 99 and cut of date is mentioned by the Honourable Supreme Court as 23-3-1990 and also observed that the land of the original declarants was not finally resumed nor transferred to any one.
(viii) Chief Land Commissioner being aggrieved by the judgment of the Division Bench dated 2-4- 2001, passed in the aforesaid writ petitions filed following petitions before the Honourable Supreme Court:-- 'C.P.L.A. No.1891-L of 2001, Addl. Chief Land Commission etc.v. M. Sardar Khan etc. ' C.P.L.A. No.1892-L of 2001, Addl. Chief Land Commission etc. v. M. Akram Khan etc. ' C.P.L.A. No.1893-L of 2001, Addl. Lana Commission etc. v. M. Sardar Khan etc.
(ix) Land Reforms Act, 1977 (Act II of 1977) was promulgated by the competent .Body, which came into force on 9-1-1977.
(x) The petitioners submitted their declaration forms under the provisions of the Land Reforms Act, 1977, whereas the Deputy Land Commissioner determined the holdings of the aforesaid declarants and resumed the excess land vide order dated 8-8-1977. One Ghulam Muhammad filed appeal before the Land' Commissioner on the basis of sale transaction by the original declarants qua the land measuring 101 Acres, 5 Kanals and 12 Marlas in village Ismailpur Rateka, which was accepted vide order dated 8-12-1977. The Deputy Land Commissioner vide order dated 15-1-1978 by the Deputy Land Commissioner which excluded from ' resumption the area sold by the declarants to Ghulam Muhammad. The land resumed from the declarants finally vide order dated 15-1-1978, was allotted to the tenants by the Deputy Land Commissioner in village Kakuani vide orders dated 11-4- 1979, 31-12-1979 and 30-4-1980. The Land Commissioner exercising suo motu revisional powers remanded the case to the Deputy Land Commissioner for fresh decision vide order dated 14-8- 1985 qua the area under litigation involved in Mutation No. 147, dated 28-11-1970 relating to village Ahmadpur Mcleod Gunj and Mutation No.105, dated 29-8-1970, of village Ismailpur Rateka.
(xi) Allottees of the resumed land being aggrieved filed revision petitions before the Chief Land Commissioner, who accepted the same vide order dated 6-10-1986 and set aside the aforesaid order dated 14-8-1985, upheld the order of the Deputy Land Commissioner. The original declarants filed applications before the Chief Land Commissioner for setting aside the order dated 6-10-1986 on the ground that the same was passed without notice to them. The Chief Land Commissioner sent a reference to the Federal Land Commission. The Chairman, Federal Land Commission upheld the orders of the Chief Land Commissioner dated 6-10-1986, vide order dated 1-3-1990.
(xii) Petitioners being aggrieved filed Constitutional Petition No.598 of 1990, before this Court against the order of the Chairman, Federal Land Commission dated 1-3-1990.
(xiii) Mst. Farrah Iqbal, sister of the original declarants also filed Constitutional Petition No.599, against the orders dated 1-3-1990 and 6-10-1986, which was dismissed for non-prosecution vide order dated 2-4-2001. The petitioner did not file any application in this writ petition for its restoration till date.
(xiv) Petitioners preferred applications before the Deputy Land Commissioner for re-calculation of their produce index units in terms of the circular dated 14-2-1974, issued by the Punjab Land Commission, on 2-7-1988. The Deputy Land Commissioner after securing reports from the WAPDA Authorities concerned dismissed the applications of the petitioners as the same were filed at belated stage vide order dated 2-7-1989.
(xv) Petitioners being aggrieved filed appeals before the Land Commissioner, who dismissed the same vide order dated 3-8-1994.
(xvi) Petitioners also filed revision petitions before the Chief Land Commissioner, who also dismissed the same vide order dated 27-4-1995.
(xvii) Petitioners being aggrieved filed four revision petitions before the Chairman Federal Land Commission, who accepted the revision petitions vide order dated 20-10-1996 and reduction of PIUs to the extent of 60% in respect of the land of the petitioners in the aforesaid villages was allowed which was implemented by the Deputy Land Commissioner vide order dated 28-10-1996.
(This fact of implementation was not disclosed by the petitioners before the Chairman Federal Land Commission and also did not mention this fact in the contents of the writ petitions. This fact was mentioned at the time of hearing of these petitions. This order was produced by the learned counsel for the petitioners at the time of hearing of the Constitutional petitions).
(xviii) The respondents being aggrieved by the orders of the Chairman, Federal Land Commission dated 20-10-1996, filed Constitutional Petitions Nos.4059 and 4060 of 1996, on the ground that the orders of the Chairman, Federal Land Commission are hit by the principle of natural justice. The aforesaid writ petitions were accepted by this Court vide order dated 20-10-1998 and remanded the case to the Chairman, Federal Land Commission to decide the revision petitions of original declarants, namely, Muhammad Sardar Khan and Muhammad Akram Khan, which were dismissed by the Chairman, Federal Land Commission vide the impugned order dated 1-6-1999. - (xix)Petitioner Muhammad Akram Khan filed Constitutional Petition No.2984 of 1998 against the order of the Chairman, Federal Land Commission dated 1-6-1999.
(xx) Muhammad Sardar Khan being aggrieved from the aforesaid order of the Chairman, Federal Land Commission filed Writ Petition No.2985 of 1999.
13. In case the aforesaid facts are put in juxtaposition then it is crystal clear that the land finally resumed by the Deputy Land Commissioner in village Kakuwani, vide order dated 15-1-1978, under the provisions of the Land Reforms Act, 1977, there is no litigation pending before any Court with regard to the land in the said village coupled with the fact that the land in the said village was allotted to the respondents by the Deputy Land Commissioner vide orders dated 11-4-1979, 31-12- 1979 and 30-4-1980.
14. The petitioners filed applications for re-determination of their units which were resumed by the Deputy Land Commissioner under the provisions of the Land Reforms Act, 1977, on 15-1-1978, for the first time in the year 1988, whereas the applications filed by the petitioners before the Deputy Land Commissioner against the orders passed in the years 1973 and 1975, were not with regard to the order of resumption under the Land Reforms Act, 1977. Those applications were filed by the petitioners qua the resumption. Order passed by the Deputy Land Commissioner under the provisions of Martial Law Regulation No.115. This ground of Sem and Thore was also not mentioned in the contents of the applications.
15. The contention of the learned counsel of the petitioners that the petitioners have not exercised their choice to surrender the excess land has no force as the law laid down by the Division Bench of this Court in Chief Administrator of Auqaf v. Federal Land Commission PLJ 1994 Note 37.
16. It is pertinent to mention here that excess land was taken from the petitioners in view of resumption order dated 15-1-1978 by the D.L.C. Which attained finality and land remained with the tenants/allottees without any interruption till the year 1996. The petitioners did not file any application for re-determination of their units at the time of resumption order passed by the D.L.C.
On 15-1-1978 and did not take this point before any higher forum till the petitioners filed application in the year 1988. It is settled principle of law that parties are bound by their pleadings. This situation establishes that the petitioners have exercised their choice for surrendering their excess land as petitioners did not appear before the D.L.C. Despite service of notice on them at the time of resumption of their land under provisions of the Land. Reforms Act, 1977 and the Tribunals below were justified to dismiss the application of the petitioners as time barred. It is also settled principle of law, in view of the provisions of the Land Reforms Act, 1977; that once the excess land has been resumed by the Land Reforms Authorities it ceases to be the property of the affected land owner.
Even otherwise in case the declarants have submitted their declaration form then their choice should be confined to the area declared by them in their declaration form under the Land Reforms Act, 1977. Lastly if the stand point of the petitioners that they had not exercised any choice previously is considered as correct then there is no escape from the conclusion that having violated a mandatory provision of Land Reforms laws, 1972 they must think themselves alone for the unsavoury consequences. In arriving to this conclusion we are fortified by the law laid down in Mian Gul Shahzad. Jahanzeb's case 1999 MLD 1107. The respondents have developed the land and it remained under their cultivation from the allotments dated 11-4-1979, 31-12-1979 and 30-4-1980 respectively till the same were taken back from the respondents in terms of the order of the Chairman Federal Land Commission dated 20-10-1996 which was passed without notice to the allottees and was subsequently set aside by this Court while accepting the Constitutional petitions of the respondents, as mentioned above. In 'this regard reference may be made to Yousaf and others v. Abdul Karim and others 1993 MLD 2123.The land in question in Village Kakuani was allotted to the tenants in the year 1979 and 1980, therefore, it would now be wrong to disturb the vested rights that have accrued to the parties. It is pertinent to mention here that the land of the original declarants namely Muhammad Sardar Khan and Muhammad Akram Khan was resumed initially under the provisions of MLR 115 of 1972 on 9-1-1973. The question of comparative productivity of the land in question for the purpose of determination of produce index units would have been a valid point in case the same had been taken well in time immediately after 15-1-1978. Therefore, at this belated stage this question could not be raised on the well .Known principle of estoppel and waiver.
Therefore, judgments, cited by the learned counsel of the petitioners Federal Land Commission Islamabad v. Syed Rehmat Shah and 22 others 1984 SCMR 669 and Federal Land Commission Islamabad v. Inayat Ullah and others 1978 SCMR 281 are distinguished on facts and law. It is proper to mention here that, land in question was not under litigation as held by the Chairman Federal Land Commission in the impugned order dated 1-3-1990 with cogent reasons which is in accordance with law, therefore, resumption order qua this land is not termed as provisional resumption order in all cannon of justice as per law laid down in Government of N.-W.F.P. v.
Federation of Pakistan 1998 SCMR 36. It is better to reproduce Notification dated 14-1-1974:-- "Memorandum No.ASR-II- 10/74/185-A.LC (II), dated the 14th January, 1974 from the Chief Land Commissioner, Punjab, to all Deputy Land Commissioners.
' Subject: Allotment of Resumed Land under Civil Litigation where neither legal stay order has been issued nor title is disputed.
It has been observed that in some districts the work of allotment of resumed land under Martial Law Regulation 115 has been held in abeyance on the ground that the concerned declarants have filed writ petitions in the High Court, etc. This practice is against the instructions issued from time to time. The instructions on the other hand are that unless a legal stay order is issued, the work of allotment of land, the title of which is not in dispute should not be stopped under any circumstances.
(2) You are, therefore, requested to go through all the cases immediately in which allotment of resumed land has been stayed and see whether any legal stay order has been issued by a competent Court for staying allotment. If no legal stay order has been issued the allotment of resumed land, of which the title is not in dispute, should proceed under the schemes approved by the Government with regard to disposal of land resumed under Martial Law Regulation 115. In other cases where the title to the surrendered land itself is in dispute, the disposal of such resumed land will be governed by Punjab Land Commission's Notifications No. DS H- 800/72/2344-LC(H), dated 9th June, 1972 and No.OS-6561 73/1625-LC(II), dated 23rd April, 1973.
' Memorandum No. OS-2069/73/ 1487-LC(II), dated 21st March, 1974, from the Secretary, Punjab Land Commission, to all Deputy Land Commissioners."
17. Mere filing of declaration form is termed that decisive step has been taken as per law laid down by Peshawar High Court in Mian Gul Shahzad Jahanzeb v. Deputy Land Commissioner, Swat 1999 MLD 1107. It is pertinent to mention here that petitioners have submitted their declaration forms by exercising their own choice in terms of aforesaid judgment of the Division Bench of Peshawar High Court in Gul Shahzad Jahanzeb's case supra and allowed the Deputy Land Commissioner concerned to resume their excess land and allowed the Authorities under the Land Reforms Laws to grant the same to the tenants and did not agitate the matter for a considerable long period.
Therefore, in such a situation persons acquiring rights in surrendered land cannot be left at the whims and mercy of the declarants. It is settled principle of law that this Court has no jurisdiction to disturb the finding of fact of the Tribunals below unless and until the same is result of misreading and non-reading of the record while exercising power under Article 1999 of the Constitution as the law laid down by the Division Bench of this Court and by the Honourable Supreme Court in the following judgments:-- ' Board of Intermediate and Secondary Education Lahore v. M. Massadaq Naseem Sindhu PLD 1973 Lahore 600.
' Syed Azmat Ali v. Chief Settlement and Rehabilitation Commissioner PLD 1964 SC 260.
' The Tribunals below were justified to dismiss the application of the petitioners for re- determination of units on the ground that the same was filed at belated stage which was reversed by the Chairman Federal Land Commission vide order dated 20-10-1996 without notice to the allottees which was set aside by this Court vide order dated 20-10-1998 passed in Writ Petition No.4059 of 1998 and Writ Petition No.4060 of 1998. Subsequently the Chairman Federal Land Commission reaffirmed the earlier orders of the Tribunals below in the impugned order before this Court. It is hardly necessary to be stated that our Government is a Government of laws. The functionaries of the State/administrative agencies derive their powers from the Constitution and laws of the land. They are required to exercise their powers in a given case after taking into consideration the relevant facts and circumstances of the case within the delimited area of their authority. In doing so they are bound to decide the matters by independent application of mind free from extraneous influences/dictation from outside agencies howsoever high they may be as the law laid down by the superior Courts in the following judgments:-- ' A.W. Malik's case PLD 1970 Dacca 178.
' Riaz Ahmad's case PLD 1977 Lahore 307.
' Muhammad Yousaf's case PLD 1976 Karachi 1219.
' After addition of section 24-A in the General Clauses Act it is the duty and obligation of the public functionaries to decide the controversy between the parties after application of independent mind with reasons as the law laid down by the Honourable Supreme Court in the following judgments;- ' Messrs Airport Support Service v. The Airport Manager 1998 SCMR 2268.
' Zain Yar Khan v. The Chief Engineer 1998 SCMR 2419.
18. This being the legal position we have no doubt in our mind that the Chairman Federal Land Cbmmission while passing the order dated 20-10-1996 did not apply his mind to the facts and circumstances of the present case even without notice to the allottees which was set aside by this Court in the earlier round of litigation, as mentioned above. It is pertinent to mention here that the land in question which was allotted to the respondents was resumed on 15-1-1978 and this land was not under litigation. Therefore, section 9 of Land Reforms Act, 1977 is not attracted. The contention of the learned counsel of the petitioners that the excess area was provisionally resumed from the petitioners has no force. Even otherwise the petitioners are estopped to raise this plea at belated stage on the well known principle of estoppel and waiver as the petitioners have not agitated the matter before the Chairman and allowed the authorities to resume the land of the petitioners and allot the same to the tenants/allottees. Possession of the land was given to the allottees. The land in question was resumed from the petitioners on 15-1-1978 which was allotted to the respondents in the years 1979 and 1980 much before the target date fixed by the Honourable Supreme Court in Qazatbashi's case PLD 1990 SC 99. All Decisive steps have been completed, therefore, principle of past and closed transaction is attracted in the present case. In arriving to this conclusion we are fortified by the law laid down in the following judgments:-- ' Mst. Ulfat Jan and others v. Deputy Land Comissioner 2001 YLR 1539 ' Syed Siddiq Hussain Shah v. F.L.C. 2002 YLR 1383.
' Mirza Muhammad Qasim Baig v. Government of Sindh 2002 YLR 1669.
' Chief Administrator of Auqaf v. F.L.C. PLJ 1994 Note 37.
' Qazalbash Waqf v. Chief Land Commissioner PLD 1990 SC 99 ' Chief Land Commissioner v. Ch. Atta Muhammad 1991 SCMR 736 Chairman Federal Land Commission v. Akhtar Abbas PLD 1989 SC 550 ' Chief Land Commissioner v. Ch. Atta Muhammad Bajwa 1991 SCMR 736
19. Learned counsel of the petitioners contended that in view of judgment dated 2-4-2001 passed by the Division Bench in Writ Petition No.373 of 1981 these cases be sent to Honourable Chief Justice for constitution of a larger Bench/Full Bench. It is better and appropriate to reproduce the operative part of the judgment of the Division Bench to resolve the present controversy"-- "(2) It appears from the record that Muhammad Sardar Khan and Muhammad Akram Khan were owners of agricultural land in excess of the permissible limits under the Land Reforms Regulations, 1972. The dispute as between them and the Land Reforms Authorities went through various stages.
However, the record shows that the land in excess of entitlement of the petitioners, was not finally resumed or transferred to any one. In these circumstances it has been argued by the learned counsel for the petitioners that in view of declaration of law in the case of Qazalbash Waqf and others v. Chief Land Commissioner Lahore and others PLD 1990 SC 99 no further proceedings can be taken for resumption of land or its transfer to any one.
(3) In the aforesaid cited judgment it was held by the Supreme Court of Pakistan that the provisions of the Land Reforms Regulations, 1972 were repugnant to Islam. This judgment to take effect from 23-3-1990 . "
' Mere reading of aforesaid two lines of para.2 which is reproduced for the purposes of emphasis that the facts of the cited judgment are entirely different from the facts of the present case:-- "The record shows that the land in excess of entitlement of the petitioners was not finally resumed nor transferred to anyone."
' In the present case as mentioned above, the land was resumed by the Deputy Land Commissioner vide order dated 15-1-1978 which was allotted to the respondents in the years. ,1979 and 1980.
' Therefore, referred judgment of the Division Bench is distinguished on facts and law. It is settled principle of law that every case is to be decided in its own peculiar circumstances and facts. In this view of the matter we are not inclined to refer the matter to the Honourable Chief Justice for constitution of a larger Bench/Full Bench. The judgments cited by the learned counsel of the petitioners are not applicable in the given circumstances in view of aforesaid distinguishing features of the case. The contention of the learned counsel of the petitioners that order dated 20- 10-1996 is final qua petitioners Nos.3 and 4 has also no force as the doctrine of res judicata cannot be attracted in the present case as the law laid down by the Honourable Supreme Court in Mst.
Maryam Bibi v. The Custodian Evacuee Property Punjab Lahore 1996 SCMR 1483. Similarly the contention of the learned counsel of the petitioners that order of Chairman Federal Land Commission dated 20-10-1996 was implemented by the Deputy Land Commissioner on 28-10-1996 has no force on the following reasons:-- "The order dated 20-10-1996 was set aside by this Court in the earlier round of litigation vide judgment dated 20-10-1998 passed in Writ Petition No.4059 of 1998 and Writ Petition No.4060 of 1998. The basic order on the basis of which the land in question was taken back by the petitioners is not more in the field. Even otherwise it is settled principle of law when the basic order is without lawful I authority then the superstructure shall have to fall on the ground automatically as the law laid down by the Honourable Supreme Court in Yousaf Ali v. Muhammad Aslam Zia and others PLD 1958 SC 104. It is pertinent to mention here that the petitioners did not point out this fact before the Chairman Federal Land Commission as is evident from the contents of the impugned order of the Chairman Federal Land Commission and petitioners also did not mention this fact in the contents of the Constitutional petitions. It is settled principle of law that he who seeks equity must come with clean hands. Substantial justice has been done, therefore, we are not inclined to exercise our discretion in favour of the petitioners as the law laid down by the Honourable Supreme Court in the following judgments:-- ' Nawab Syed Raunaq Ali v. Chief Settlement Commissioner PLD 1973 SC 236.
' Rana Muhammad Arshad v. Additional Commissioner Revenue Multan Division 1998 SCMR 1462 ' Principal King Edward Medical College v. Ghulam Mustafa 1983 SCMR 196 ' Abdul Rashid v. Pakistan and others 1969 SCMR 141
20. We do not find any infirmity or illegality in the impugned orders of the Tribunals below.
Therefore, Constitutional petitions have no force and the same are dismissed with no order as to costs.