' S. A. NUSRAT, J.-This petition has been brought to challenge the order dated 30-5-1972 passed by the respondent No, 4 and two orders dated 24-8-1972 and 30-5-1973 passed by the respondent No, 3 and lastly the order dated 2-10-1974 passed by the respondent No. 1. Further two Notifications dated 26-2-1973 and 2-10-1973, issued by the Land Commissioner, Sind, the Notification dated 16- 2-1973 issued by the Federal Land Commission and a letter dated 23-8-1972 issued by the Sind Land Commissioner have also been challenged. The facts stated in the petition are as under :
2. The petitioners are the son and widow respectively of one late H. M. Yahya who died at Karachi on 3-8-1973. The deceased had migrated to Pakistan from Bihar where, consequent upon the death of his father in 1945, he, alongwith his two sisters and another, had come to Merit certain agricultural land left by their father. His own share in the land was 7 annas in a rupee. The claim of the deceased in respect of such land, left by him in India, was verified on 15-9-1959. Earlier he had been allotted 1191 acres of agricultural land against his claim Form No, IRIV No, 139/2756 dated 1-10- 1957. The entitlement of the deceased was curtailed by virtue of the provisions of the Martial Law Regulations 84, 89 and 91 and was ultimately determined at 157.151 acres equivalent to 5350 P. I. Us.
And with the addition of surrendered and re-purchased land his total holding worked out to 232.191 acres. The deceased had also installed a tube-well on the lands for the purpose of irrigation. No other land was acquired by the deceased during the tenure of his service. The deceased, on the promulgation of the Land Reforms Regulation, 1972, filed a declaration under para. 10 thereof. The same was scrutinised by the respondent 4 on 30th May, 1972, who treated the entire area of 389.35 acres, which was in actual possession of the deceased, as his acquired land while in service. The deceased was, therefore, allowed to retain only 100 acres of land and the balance was ordered to be resumed. The deceased filed an appeal against the said order which was decided by the respondent 3 on 24-8-1972. The order of the respondent 4 was upheld except that he was allowed to retain additional land, equivalent to 1/6th of 100 acres, on account of tube-well concession. The deceased then preferred a Revision Application challenging the order of the 4th respondent, whereupon the case was remanded by the first respondent on 27-3-1973 to the respondent 3 for fresh decision. The respondent 3, on such remand, passed an order dated 8-10-1973 and allowed 360 P. I. Us, being 10% of the original allotted 3,600 P. i. Us to the deceased, relying upon Notification No, S. L. C. 3668/72/837 dated 26-2-1973, according to which it was clarified that only 10% of the land, which was actually allotted to a refugee Government servant in satisfaction of his verified claim pertaining to non-agreed areas should be treated as "having devolved on him by inheritance". According to the said Notification, balance 93% for which option to purchase was exercised, had to be treated as acquired land within the meaning of paragraph 10(1) of M. I.,. R.
115. The deceased filed yet another Revision Application against the said order. As he died on 3-8- 1973, the petitioners were impleaded as parties to the Revision Application, which was later dismissed by the respondent 1 on 2-10-1973 in the light of Notification No, S. L. C. 3668/72/5317 dated 9-10-1973, which provided that all land obtained by Government servants in settlement of their claims, whether they came from agreed or non-agreed area, shall be treated as self-acquired land for the purpose of paragraph 10 of M. L. R. 115 and the earlier Sind Land Commission Notification No, S. L. C. 3668/72/837 dated 26-2-1973 in this respect shall be treated as withdrawn and cancelled.
3. Mr. S. Mushtaq Hussain, learned counsel for the petitioner, contended that the case of the deceased father of the petitioner No. 1 and husband of petitioner No, 2 was covered by the proviso to clause 1 of para. 10 of Martial Law Regulation, 1972 (M. L. R. 115) (hereinafter referred to as the Regulation) and the restriction of holding of land as laid down in clause 1 of the said paragraph was not attracted to his case as the land acquired by him happened to be his inherited property, having been allotted to the deceased against his verified claim in lieu of the land which he had inherited from his father in India. It was further contended that the Notification No, S. L. C.
3668/72/837 dated 26th February, 1973 issued by the Sind Land Commission fell outside the purview of paragraph 10 of the Regulation itself and wait invalid and not enforceable. In the alternative, it was urged that the respondent 3 having passed the order dated 10-5-1973, giving benefit to the deceased H.. M. Yahya of the said Notification dated 26th February, 1973, the first respondent could not legally deprive him of such benefit as per his impugned order dated 9-10- 1974 by applying another Notification of the Sind Land Commission No, S. L. C. 3668/72/5317 dated 2nd October, 1973 thereby taking away a right which had come to be vested in the deceased in terms of the earlier Notification. In other words, the contention raised by the learned counsel was that no locus poenitentiae was left with the Additional Chief Land Commissioner to recall the order of the third respondent dated 10-5-1973 which endured to the benefit of the petitioner's deceased father.
4. The contention of the learned counsel that the Land allotted to petitioner No, I's father and petitioner No, 2's husband was not his acquired land has to force. Admittedly, the father of H. M.
Yahya had expired in India in 1945 and accordingly inheritance did not open in Pakistan so that it could be said that the land allotted to the deceased was his inherited property. The deceased had inherited the' land from his father way back in India in 1945 to the extent of 7 annas in a rupee and, therefore, as from 1945 he became vested with a right of his own so that after Partition the claim, which was verified in his name was by virtue of his independent entitlement ; technically may be in relation to the land which was once owned by his father. Further 344.74 acres of land was purchased by 'the deceased H. M. Yahya on installment basis under the provisions of M. L. R. 91 and such land was clearly the land which he had acquired himself. In support of his contention that the first respondent was left with no locus poenitentiae, after the passing of the order of the third respondent on the basis of the Notification dated 26th February, 1973, reliance was placed by the learned counsel on Shahbaz v. Crown (1) and Pakistan v. Muhammad Himayatullah (2). This contention too has no force because no proceedings- determining the holding B -1 of the deceased had yet been finalised under paragraph 8 of the Regulation, as rightly pointed out by Mr. Usman Ghani Rashid, learned counsel for the respondents. Besides, the deceased had himself kept the proceedings going by challenging the order of the third respondent in Revision, and thus his case was still not closed.
' Mr. S. Mushtaq Hussain further referred to three more cases viz. Pakistan v. Hassanali (1), G. L.
Bhattacharya v. State (2) and Collector of General Excise and Land Customs v. Azizuddin Industries Limited (3) in support of his contention that a vested right could not be taken away by means of a subsequent Notification. The said decisions are firstly not applicable to the facts of the petitioner's case at d are otherwise distinguishable. The impugned Notifications were issued under clause 8 of paragraph 4 of the Regulation and, once issued, are to be treated as part of the Regulation and have effect accordingly. The said Notifications thus took effect with the Regulation so that the question of any retrospective operation also would not arise.
5. For the foregoing reasons, we find no merits in this petition which fails and is dismissed with no order as to costs. {{FOOT NOTE}}
(1) PLD 1960 SC 310 (2) PLD 1964 SC 503
(3) PLD 1970 SC 439 {{FOOT NOTE}}