' M. JAVED BUTTAR, J.--- This appeal by leave, is directed against the judgment dated 23-12-1996 of the High Court of Balochistan, Quetta whereby Constitutional Petition No,200 of 1995 instituted by the appellants against various within mentioned orders passed by the Revenue/Land Reforms Authorities, under MLR No,64 (West Pakistan Land Reforms Regulations, 1959), transferring the land in dispute to private respondents, was dismissed on merits as well as on laches.
2. In pursuance of the various orders passed by the Revenue/Land Reforms Authorities, which have been mentioned in the impugned judgment, lands allegedly owned by the appellants, situated in Mouzas Khattan, Bhagai, Kolang, Rustam, Chattani, Pir Ahmad Shah and Pear, sub-Tehsil Khattan, District Bolan, were transferred in the names of ' private respondents, in purported exercise of jurisdiction under the above referred Regulation.
3. The case of the appellants was and is that they were owners of the agricultural land in dispute situated in above mentioned different Mouzas which were acquired by their predecessors through purchase, gifts, blood-money, decrees of the Courts as well as Sannads/instruments of title, issued by the then Khan of Kalat, that at the time of Settlement of area which was carried out in the year 1958, in the revenue record, the names of their predecessors-in-interest were recorded as owners whereas the names of the private respondents or their predecessors-ininterest were recorded as their tenants-at-will but the Deputy Commissioner of District Kachhi (now Bolan) vide letter No,SK746-49 dated 30th October, 1983, directed Assistant Commissioners, Dhadar and others, in whose jurisdiction appellants' lands were situated, that as under Regulation 64 of 1959, appellants' lands being "Jagirs" stood forfeited, therefore, they should implement the Notification No,DSH538- 65/4395-LC, dated 29th October, 1965.According to appellants, in pursuance of said letter, without issuing notices to them entries in the Revenue Record from their names, were cancelled and mutations were attested in favour of private respondents, by Revenue Officers and on coming to know about it, they approached the Member, Board of Revenue, by filing revision petition under MLR 115 read with rule 12 of Balochistan Land Reforms Rules, 1972 but the said petition was dismissed on 16th April, 1995, which lead to the institution of above referred constitutional petition.
4. The action against the appellants was taken.Under MLR No,64 of 1959 promulgated on 7-6-1959, which was to take effect at once except in certain areas to be notified in the official Gazette by the West Pakistan Land Commission under the above said Regulation, and in paragraph 21 of the said Regulation, all Jagirs stood abolished and the land vested in the Government free from any encumbrances. It has also been brought on the record that the then Deputy Commissioner, Kachhi District, issued instructions to the Nazims vide his Memorandum No,6263- 56/Arbitrators dated 27- 4-1966 for treating the lands in question as Jagirs within the meaning of MLR No,64 of 1959 which stood abolished under the said Regulation w,e,f, 7-2-1959 and Memorandum No,6298- 99/Rev-5 dated 26-4-1966 was addressed to the Commissioner, Kalat Division, who at the relevant time was Land Commissioner under the provisions of the said MLR from whom directions were solicited about the ownership rights of the lands in the area in dispute in Tehsil Dhadar. The Commissioner through Memorandum No,8308-11/L/64/A/Rev, dated 25-6-1966 informed the Deputy Land Commissioner that the lands in question were not Jagirs within the meaning of MLR 64 of 1959, therefore, the directives issued by him to the Nazims were illegal and should be withdrawn.
Thereafter, the Deputy Land Commissioner issued fresh instructions to Nazims and Tehsildars directing them not to act under the earlier instructions.
5. It seems that thereafter, some of the tenants/respondents or their predecessors-in-interest filed separate writ petitions before the High Court of West Pakistan at Lahore challenging legality of the order of the Deputy Land Commissioner withdrawing his memorandum dated 27-4-1966 which were dismissed in limine on 26-7-1967. The said order was brought under challenge before this Court in which leave to appeal was granted on 9-10-1967 (1970 SCM R 81). Subsequently, however, leave granting order was recalled as certain compliances were not made by the Advocate-on- Record of the said respondents. Thereafter, allegedly the respondents/tenants did not raise any dispute in respect of the property in dispute in any manner whatsoever.
6. The case of the appellants was that the land in dispute was not "Jagir" within the meaning of MLR 64 of 1959, therefore; the same was out of purview of para.21 of above Regulation and was wrongly treated as having vested in the Government, that after the above mentioned instructions dated 25-6-1966, issued by the Commissioner, and after dismissal, of the writ petition of the tenants on 26-8-1967, the Deputy Land Commissioner, Kachhi illegally issued the above said orders, dated 30- 10-1983 for treating the appellants' properties as Jagirs and for treating them as having been forfeited under para.21 of MLR 64 of 1959 and illegally directed the Naib Tehsildar Sunni to mutate the properties belonging to the appellants in favour of the private respondents, who in pursuance whereof sanctioned mutations in favour of the respondents as owners.
7. We have heard the learned counsel for the appellants, the learned Additional Advocate-General Balochistan for official respondents, the learned Senior Advocate Supreme Court for private respondents 10-384 except respondents 22 to 26, at length and have also seen the available record.. The unrepresented private respondents are proceeded ex parte.
8. It is submitted by the learned counsel for the appellants:---
(i) that the writ petition could not have been dismissed on the ground of laches, for the said objection was not raised in that writ petition as a consequence of which the appellants did not have the opportunity to explain the delay which occurred in filing the writ petition. (relies on Pakistan Post Office v. Settlement Commissioner and others 1987 SCM R 1119);
(ii) that no opportunity was given to the appellants taking action to prove that the properties in question were not Jagirs within the contemplation of the said expression as used in MLR 64 or other relevant laws;
(iii) that the previous decision of the Land Commissioner dated 25-6-1966 had attained finality as the writ petition against the same stood dismissed, therefore, the issue ,could not be reopened, being past and closed transaction;
(iv) that in view of this order of the Commissioner, the provisions of MLR 64 of 1959 could not be invoked on the ground that the same were self-executory after their repeal through MLR 115 of 1972;
(v) that the principle decided in the case of Nawabzada Malik Habibullah Khan Tiwana and others v. The Province of West Pakistan and another PLD 1967 Lah. 533 as to definition of Jagirs was not correctly applied to the facts and circumstances of this case;
(vi) that entries in the ownership columns in the Record of Rights, against the names of the appellants or their predecessors-ininterest, as "Jagirdars" could not be taken to mean that the lands in dispute were "Jagirs";
(vii) that no evidence or material was available with the Authorities to establish that the lands were grants within the meaning of MLR 64 of 1959 so as to deal with them as "Jagirs" under the said MLR;
(viii) that no notice before changing entries, was given to appellants, as such, they were condemned unheard, therefore, question of laches did not arise; and
(ix) that even if the appellants' properties are to be treated as Jagirs and are deemed to have been forfeited/acquired and vested in the Government free from any enCumbrances, as held by the High Court in the concluding paragraph, immediately after 3rd October, 1959, or from the date of promulgation of the MLR 64 of 1959 i,e, 7-6-1959, still the appellants are entitled to the benefits conferred upon the landowners, under sub-para.(2) of para.21 of the above said Regulation, whereunder such landowners were entitled to retain as full owners, areas upto 500 acres of irrigated land or 36000 P.I.U's, whichever was more which limit was inclusive of their other holdings and this statutory provision which is self-executory in nature escaped the notice of all the forums below including the Honourable Judges of the High Court and no exercise has been undertaken by the Land Reforms Authorities to determine that to what extent the alleged Jagirdars/appellants or their predecessors-in-interest were entitled to retain lands from such forfeited Jagirs under sub- para. (2) of para.21 of MLR 64 and to that extent, the lands could not be transferred in favour of private respondents.
9. The learned Additional Advocate-General as well as the learned senior Advocate Supreme Court representing the private respondents while vehemently opposing the appeal and supporting the impugned judgment, have argued that in view of the plentiful documentary evidence available on the record, the High Court as well as the Land Reforms Authorities and the Revenue Authorities correctly determined the nature of the properties in dispute as "Jagirs". The learned Additional Advocate-General, Balochistan has however, frankly conceded that after treating the properties in dispute as "Jagirs", the appellants or their predecessors-in-interest were entitled to the benefits conferred to such owners/Jagirdars, under sub-para (2) of para 21 of MLR 1959 and the Land Reforms Authorities ought to have determined such rights and the extent to which they were entitled to retain areas from such "Jagirs" as full owners before transferring the land in dispute in favour of private respondents. The learned senior Advocate Supreme Court representing the private respondents, on the other hand, has submitted that this issue has been raised by the appellants for the first time before this Court and nobody should be permitted to set up a new case at this stage.
10. Learned counsel for the appellants, at this stage, stood up and intervened that he would not press for a decision from this Court that the properties in dispute were not "Jagirs" and they were outside the purview of MLR 64 of 1959, if the appellants or their predecessors-ininterest, are held entitled to the benefits given to such Jagirdars under sub-para (2) of para.21 of MLR 64 of 1959.
11. The learned Judges of the High Court besides holding the appellants' constitutional petition to be badly suffering from laches, gave findings against the appellants on merit as well by holding that the properties in dispute were "Jagirs", in the following manner:-- "Although we have found petition not maintainable for the reasons, noted hereinabove, but keeping in view the interests of parties, we also desire to examine the case on merits. As it has been observed hereinabove, that in the settlement of Tehsil Dhadar, petitioners were recorded as Jagir holders in 1958-59, but they did not challenge such entries subsequently, before any competent forum. In the meanwhile Regulation 64 of 1959, was promulgated with effect from 3rd October, 1959, with its commencement, at once, except in the unsettled Districts of Quetta and Kalat Division, where it shall come into force on such date and dates, as the Commission may have notified in the official Gazette etc. As for as Dhadar where land in question is situated, is concerned, at that time, it was part of Kalat Division being Tehsil of District Kachhi. Mr. Yakub Khan Yousafzai the then Advocate-General although had referred to Notification dated 29th October, 1969, according to which Regulation 64 of 1959, was enforced in Dhadar and Jhal Magsi Tehsils w,e,f, 7th February, 1959, but in our opinion, there was no necessity for issuance of such Notification, as far as Tehsil Dhadar is concerned, because from the admitted facts of case, we can see that before coming into being of Regulation 64 of 1959, Tehsil Dhadar was a settled area. Anyhow, even if for sake of arguments reliance is placed on said Notification, again it leads us to conclude that from 7th February, 1959, Regulation 64 of 1959, was made applicable over there with its commencement, at once. We have carefully surveyed various provisions of Regulation 64 of 1959, but we failed to notice any provision, available therein, to hold that after its promulgation, concerned Revenue Authorities with regard to abolition of "Jagirs" were required to do any overt act, namely; by way of inviting claims of owners to determine, whether, they have given the property as "Jagir" to the occupants whose names are recorded in Revenue Record or by obtaining or getting filled any particular forms from any of them primarily interested in lands etc. Therefore, we are of the considered opinion that any Statute, provisions of which are not required to operate by subsequent act, is deemed to be self-executory. Thus, even without separately directing forfeiture of interest in "Jagirs" as far as Holders of "Jagirs" are concerned, their rights would be deemed to be extinguished, on the day when law i,e, Regulation 64 of 1959, was promulgated. It is evident from para.2(vi)(a) of the Regulation that word "Jagir" includes any grant of land by way of "Jagir".
Actually by using the word "includes" Law givers, had intention to include any grant of land, allowed to any person on whatsoever consideration, shall be treated as "Jagir". In this behalf Honourable Lahore High Court in a ceremonial judgment reported in PLD 1967 Lah. 533, interpreted word "Jagir" with its reference to Punjab Abolition of Jagirs Act, 1952. At this stage, it may be mentioned that under the said Act, as well as under Regulation 64 of 1959, to some extent, definition of word "Jagir," is identical. While interpreting this expression, definition from other corresponding Statutes of the word "Jagir" was also examined and finally it was held as follows:-- ' We have held that pardon or exemption from land revenue or in other words, the grant to retain the land revenue himself was a Jagir in the ordinary sense of this word and was, therefore, hit by the provisions of the Punjab Abolition of Jagirs Act IX of 1952. Apart from the above, however, we are also of the opinion that if not falling within the ordinary meaning of the word "Jagir" the present case was covered by the extended meaning of the word as given in section 2(1) of the Act.
According to the said section "any assignment or release of land revenue" is also a Jagir. This is clearly a case of release of land revenue, because when the grantee is being given exemption from paying land revenue or when he is being given a land revenue free estate, it means that he is being released from the liability to pay land revenue. Learned counsel for the petitioners submitted that the phrase "release of land revenue" has a technical meaning and is used in such cases where land revenue is remitted to the owner himself. He states that it relates to those estates, which are Mu'afis. On the other hand, when it is assigned to, or released in favour of a third person, (that is a person other than the owner) then it is known as a Jagir. In our opinion, there is no need to import this technical distinction in the present case. As will be evident from the description of various land tenures as reproduced from various text-books in the earlier part of this judgment, the distinction, which the learned counsel is trying to maintain, has ceased to exist, with the passage of time. And how pardon of the land revenue is also known as Mu'afi or Jagir. Anyhow, without conceding that release of land revenue has any technical meaning, as is being suggested by the learned counsel for the petitioners, in the present case, the intention of the Act is not to give that technical meaning to it, because the words "assignment" or "release" have been prefixed by word "any". The use of the word "any" shows that the intention is not to give the words following it any restricted or technical meaning, but rather to enlarge them. In this way, every case where land revenue has been released whether in favour of the owner or a third person, will be covered by this phrase. It was laid down in Wooler v. North Eastern Breweries (1910) 1 KB 247, that "any" is a word which excludes limitation or qualifications. It connotes wide generality. The same was the view expressed by Fry, L.J.
In Duck v. Bates (1884) 13 QBD 43. This proposition of law was accepted as correct by a Full Bench of this Court reported in Dr. Cowas C. Mehta v. Additional Settlement and Rehabilitation Commissioner and others (3). In that case, a question arose as to whether occupants of houses which had been declared as big mansions were eligible for protection given in section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 (XXVIII of 1958). The wording of the said section was to the effect that protection was available to any person who was in possession of "any", evacuee house, etc. Farooqi, J., who wrote the leading judgment held as follows at page 952:- - "Now, in the definition of the term "house" an exclusion had been made in respect of residential premises which might be declared under para.16 as a big mansion. That limitation of the definition was known to the framers of the Act and, therefore, when they came to enact section 30, it appears to us that they advisedly used the word "any" before "evacuee house", it was held by L.J. Fry in the case of Duck v. Bates, that the word "any" excludes limitation or qualification. It is true that the generality of the expression of the word may be restricted by the "Jagirs" because they were owners or possessed more than 500 acres of irrigated land or 36000 P.I.U.'s, in addition to the land under "Jagirs", to disentitle them to claim any benefit under sub-paragrpah (2). It may be mentioned here, that the benefit contemplated under the abovesaid subparagraph (2) was conferred on all such Jagirdars automatically and the provision was self-executory. Therefore, we find no force in the arguments of the learned counsel for the private respondents that appellants should not be allowed to raise this issue at this stage, which in our view, stood automatically raised the moment the properties in dispute were treated as "Jagirs", thus, it can be raised at any time.
Even otherwise, the careful perusal of the record shows that the issue has not cropped up for the first time. The Commissioner, Kalat Division, in his above mentioned directions dated 25-6-1966, in para.(b)(vii) had also considered para.21(2) of MLR 64 of 1959 and had concluded that;-- "Since the Settlement Operations in Kachhi/Kalat are still going on, therefore, we cannot determine if a particular landowner possess lands, including the so-called Jagirs of Kachhi District exceeding 500 acres of irrigated land or 36000 produce index units."
' Therefore, in any case, Land Reforms Authorities on their own, after having determined the nature of properties in dispute, as "Jagirs", were duty bound to undertake the exercise under sub-para (2) of para.21 of MLR 64 of 1959. Furthermore, it is purely a question of law which can be allowed to be raised at any time.
15. In view of the above mentioned , this appeal is partly allowed and it is held that the Land Reforms Authorities acted illegally in not determining the entitlement of the appellants or their predecessors-in interest under sub-para. (2) of para.21 of MLR 64 of 1959 prior to transferring the land in dispute in favour of private respondents or their predecessors-in-interest, therefore, the Deputy Land Commissioner of the concerned District or the concerned lawful authority shall immediately initiate proceedings for determining the rights/entitlement, if any, of the appellants or their predecessors-in-interest under sub para.(2) of para.21 of MLR 64 of 1959 and take steps for giving them their entitlement in accordance with the above law, rules and regulations etc. And since it is a very old matter, therefore, it shall be finalized within six months.