A. WAHEED BHATTI, MEMBER - This is a revision petition filed against the order dated 22.10.2007 passed by the learned Chief Land Commissioner (CLC) Punjab, whereby he dismissed the appeal filed by the petitioners against the order dated 7.8.2003 by the Land Commissioner (LC), Jhang.
2. The detailed facts of the case have already been given in the order of CLC dated 2.3.1998 & need not to be repeated. However, the concluding portion of the order of learned CLC dated 2.3.1998 is reproduced here to understand the matter:-- "I have given my careful thought to the arguments advanced by both sides and perused the impugned orders. The crucial point involved in this case is as to whether Mst. Jannat Bibi could lawfully own/possess any share out of the area equivalent to 37699.532 PIUs declared by her under the Land Reforms Regulation, 1972, after the commencement of the West Pakistan Muslim Personal Law (Shariat) Application Act, 1962, and if so that what extent. The litigation pending before the Lahore High Court concerns the issue whether late Chiragh Shah husband of Mst. Jannat Bibi was Shia or Sunni. If Chiragh Shah is finally held to be Shia, his issueless widow, Mst. Jannat Bibi would not be entitled to . Inherit any land out of the afore-said 37699.532 PIUs but if the a held to be Sunn, Mst. Jannat Bibi would be entitled to inherit 1/8th share out of 37699.532 PIUs which share is less than the ceiling under the Land Reforms Regulation, 1972. Thus Mst. Jannat Bibi was not hit by the ceiling under, the Land Reforms Regulation, 1972 and the resumption of land from her under the Regulation and subsequent allotment of resumed land to tenants/respondents was without lawful authority. This position and the order dated 4.10.1978 of the Senior Member, Federal Land Commission do not appear to have been kept in view by the Land Commissioner, Faisalabad Division While passing the order dated 26.10.1992.
Resultantly the revision petition is accepted, the impugned order dated 26. TO. 1992 of the Land , Commissioner, Faisalabad Division, is set aside and the orders passed by the lower forums regarding resumption of land from Mst. Jannat Bibi under the Land Reforms Regulation, 1972 and allotment of the resumed under the Regulation are also set aside and. The land restored to the persons entitled to inherit the same under the West Pakistan Muslim Personal Law (Shariat)
Application Act, 1962, subject to ceiling under the West Pakistan Land Reforms Regulation, 1959 and the subsequent. Land Reforms Regulation, 1972 and the Land Reforms Act, 1977."
3. The tenants/allottees challenged this order before the Lahore High Court Lahore through Writ Petition No, 5594 of 1998. The Writ Petition was dismissed by the honourable High Court vide order dated 13,2.2001 with the following observations:-- "According to the customary law the estate of the deceased devolved upon the surviving widows as limited owners. On the death of two widows the entire property came to vest in Mst. Jannatan as the only surviving widow of the deceased. On the promulgation of the Land Reforms Ordinance, 1972 Mst. Jannatan submitted a declaration. She was allowed to retain 12000 PIUs and the remaining land which was surrendered by her was transferred to the petitioners who were sitting tenants are respondents are collaterals of Chiragh Shah and made an application before the Land Reforms Authorities that Mst. Jannatan could not inherit the entire property, therefore, they being heirs of land owner Chiragh Shah be granted the said land. This dispute went up to the level of Chief Land. Commissioner, Punjab who set aside the order of resumption of land from Mst.
Jannatan and directed that the respondents be considered as owners of the land which should be transferred in accordance with law.
It appears that Mst. Jannatan had filed a civil suit seeking declaration that she is sole legal heir of Chiragh Shah which was originally decreed that on appeal the learned Additional District Judge dismissed the suit. Her legal representatives filed civil revision No. 1747/1939 which was ultimately dismissed by a learned Single Judge of this Court on 28.9.2000.
Learned counsel for the petitioners has contended that Mst. Jannatan was full owner and the land was rightly resumed from her We are unable to accept this contention. As has already been mentioned that Mst: Jannatan had filed a suit in which the matter. Has ultimately been resolved by this Court in civil revision wherein it was held that she was a limited owner and on her death the land is to be distributed amongst the legal heirs of Chiragh Shah in view of West Pakistan Muslim Personal Law (Shariat) Application Act, 1962. The petitioners cannot, therefore, re-agitate that land belongs to Mst. Jannatan. This petition has no merits and is dismissed with no order as to costs".
4. The learned counsel for the petitioners raised the following points that:-?
(i) the portion of impugned order dated 22.10.2007 of the CLC and main order dated 2.3.1984 of CLC Punjab to the extent of directions to the petitioners for filing declaration- forms under MLR-64-115 and Land Reforms Act-II fo[ re-determination of his holding under the Land Reforms and the action dated 6.12.2001 by the Deputy District Officer (Revenue), Chiniot for the same purpose are illegal, void ab initio, without jurisdiction, unlawful and are nullity in the eyes of law and deserve to be declared as such;
(ii) the relevant provisions of Land Reforms Regulation, 1972 (MLR-115 of 1972) and Land Reforms Act-II of 1977 relating to determination of holding fixation of ceiling limit, vesting of excess land in government, retention and surrender and its- further allotment to tenants.; etc. Were declared repugnant to the. Injunctions of Islam and. Were directed to pease to have effect w.e.f. 23.3.1990.
Reliance in the case of Qazalbash Waqf v Chief Land Commissioner, reported in PLD 1990 SC 99. '
Since the whole of paragraphs 8, 13, 18 and others of MLR-115 and Sections 3, 4 and 11 to 17 of the Act, 1977 have been declared repugnant to injunctions of Islam and'the same not being, in force since 23.3.1990, the directions of the respondents for filling declaration form for re-determination of the holding of the petitioners under MLR-115/72 and Act-II of 1977 are in contravention of the settled law and the same are illegal and void.
(iii) In terms of Article 203-D, Clause 3(b) read with Article 203-F(2) of the Constitution of Islamic Republic of Pakistan, 1973, the Stricken provisions ceased to have effect and stood removed from the Statute Book on and after the crucial date. The effect of declaring a law as repugnant to the Injunctions of Islam or its consequential ceasing to have effect was considered by the honourable Supreme Court in the case of Sardar Alt v. Muhammad Ali, reported as PLD 1988 SC 287. Even in pending cases was held that if a decree for pre-emption was not obtained by plaintiff before the crucial date from which the law ceased to have effect, no decree could be passed in such case after the fixed date even' by the Supreme Court.
(iv) The Article 24 of the Constitution of Islamic Republic of Pakistan, 1973 lays down that no person shall be deprived of his property save in accordance with law and Article 25 of the Constitution says that all citizens are equal before the Jaw and entitled to equal protection of law. Thereby the portion of impugned order dated 22.10.2007 and main order of CLC, dated 2.3.1998 violate the afore-said Articles of the Constitution of Islamic Republic of Pakistan, 1973.
The petitioner's cases under Reforms Regulation, 1972 and Land Reforms Act-II of 1977 were not pending cases at the relevant time. Therefore, the same cannot be re-opened and re-examined now by the Punjab Land Commissioner even in exercise of revisional or suo motu side as the authorities have no jurisdiction after crucial date i.e. 23.3.1990.
(v) the tenants succeeded to obtain illegal allotments order under para. 18 of MLR 115 which was against the direction of the Superior Courts. As the matter was pending between the Land Commission and the Land Owners and unless and until the land is finally resumed from the declarant, the tenants had no rights to get allotment. Resultantly, this allotment was cancelled by the Order of CLC Punjab in the year 1998 and restored the land to the persons entitled , to inherit and upheld by. The Honourable High Court in the year 2001.
5. I have heard the learned Counsel for the petitioners at length and perused the relevant record. I have also gone through all the series of previous orders and studied the law arid authorities of the Superior Courts.
6. Examination of the case establishes that land under question was incorrectly and illegally resumed from Mst. Jannat Bibi and was wrongly allotted to the tenants. The CLC Punjab in his order dated 2.3.1998 explained the legal position and ordered to cancel the allotment and restored the land to the persons entitled for inheritance: The writ petition filed by the allottees was dismissed by the Honourable High Court vide judgment dated 13.2.2001. The application of tenants to make them party in this case is rejected on the ground that when they have lost their case upto High Court, this Tribunal has no jurisdiction to attend their request. On the other hand, the Honourable Lahore High Court vide judgment dated 28.9.2000 passed in civil revision petition No. 1747/1989 filed by Maqsood Ahmed etc. Relating to inheritance was decided in favour of the petitioners. Leave to appeal against the said judgment was also refused on 11.12.2001 by the Honourable Supreme Court of Pakistan in Civil Appeal No. 2654/2000.
7. Regarding the question relating to the effect of' the judgment of the Supreme Court of Pakistan in its judgment passed by Shariat Appellate Bench in Qazalbash Waqf's case reported in PLD 1990 SC 99 whether the existing celling of land as laid down in the land reforms laws (MLR-115 & Act!I of 1977) apply to present case even after the decision of Supreme Court declaring the provisions of law as repugnant to the Injunctions of Islam. It has been stated in paragraph 6 of the order of the; Court that the decision shall take effect on 23rd March, 1990, whereupon the provisions repugnant to the Injunctions of Islam will cease to have effect. At page 103 of the judgment the learned Judge Mr. Justice Muhammad Afzal Zullah observed as follows:-- However, I am of the view that the. Decision of this Court shall not affect those cases in which any decisive step has been or is now taken in the ordinary normal course of any stage of the proceedings, im the implementation of the-provisions which would cease to have effect as a result of the Court order; prior to the date to be fixed therein. See mutates mutandis application, the case of Sardar Ali and others V Muhammad Ali and others (PLD 1988 Supreme Court 287)."
8. In the present case whether any "decisive step" have been taken at any stage under MLR-115 and Aet-II of 1977? The answer is that no step had been taken either by the declarant or by the land reforms authorities, nor any proceedings were pending before any land reforms authorities.
Furthermore, the opinion of the learned Judge had taken the view that the excess land, if any, did not vest automatically in the Government on the promulgation/enactment of the said Regulation/Act and some step had to be taken by the owner or by the land reforms authorities under the Land Reforms Laws before 23.3.1990, which admittedly had not been taken in the present case. This view-point is supported by another judgment of Supreme Court reported as PLD 1998 SC
132. Since the relevant paras of the Regulation and the Act were declared repugnant to the Injunctions of Islam and were directed to cease to have effect from 23,3.1990, accordingly in terms of Article 203-D clause (3)(b) read with Article 203- F(2) of the Constitution of Pakistan, 1973, the stricken . Provisions of the law have lost their sanctity and the same had become un-functional, inoperative and of no legal effect. Thus, the directions issued by the learned CLC Punjab for filing declaration forms for determination of holding of the petitioners, under the Land Reforms Laws are without jurisdiction.
9. In view of the facts and the clear law position as laid down in the quoted judgments of the honourable Supreme Court of Pakistan, I have no option but to accept the revision petition The result, therefore, is that the impugned others dated 22.10.2007 and 2 3.1998 of CLC to the extent of directions to file declarations under Land Reforms Laws are set aside
10. The arguments were heard and order was reserved on last date of hearing i.e. 8 3.2008 for Studying the record and quoted authorities of the Superior Courts. The parties be informed directly as well as through DLC, Jhang.