1. ABDUL KADIR SHAIKH, J.-The facts of the case briefly stated are that the disputed land comprising 143 kanals 15 marlas situated in village Ghafooran, District Vehari on having been surrendered under the provisions of Martial Law Regulation No. 64 of 1970 was granted to one Chaghotta. Later, the Deputy Land Commissioner by the order dated 17-8-1964 resumed the land due to defaults committed by Chaghotta in payment of instalments of the purchase price, and .The land was then put to public auction on 30-5-1965 and jointly purchased by Ahmed Din and Muhammad Din, the first two appellants, the highest bidders. After the auction was confirmed in their favour on 23-4- 1976, they transferred it to Muhammad Ali, the thud appellant.
2. After the death of Chaghotta, his predecessors-in-interest the first seven respondents, filed an appeal, against the order of the resumption of the land on the ground that no prior show-cause notice had been issued to them. The Land Commissioner, Multan allowed the appeal by the order dated 14-6-1966 and remanded the case to the Deputy Land Commissioner for fresh decision in accordance with the law. On remand, the Deputy Land Commissioner directed the respondents, by the order dated 8-5-1966, to deposit the entire amount due against them and also to pay Rs. 100 as penalty within one month, failing which the land shall stand resumed as per order dated 17-8- 1964. It is the admitted position of the parties that the respondents did not deposit any amount in compliance with this order, and it remains unchallenged till today.
3. The next step in the proceedings was taken by the appellants by making an application to the Revenue Authorities that mutation of the land in their favour be restored in implementation of the order of the Deputy Land Commissioner dated 8-8-1966. They also approached the Deputy Land Commissioner in this behalf, who by the letter dated 14-3-1974 directed the Tehsildar, Vehari that since the auction purchasers had paid full price for the land the earlier `office order' dated 10-4- 1971 that auction be entered in the Revenue Record and mutation of land be made in favour of the auction purchasers should be implemented. Pursuant to this order, mutation No. 188 dated 4-4- 1974 was entered in appellants' favour, but on 16-8-1974 it was cancelled on the ground that the order granting proprietary rights to the appellants was not available on the record and another mutation No. 250 was subsequently entered in respondents' favour on 27-2-1975 for the reason that they were entitled to the grant of land without payment of any instalment by virtue of the provisions of paragraph 28 of the Land Reforms Regulation, 1972.
4. On appeal at the instance of the appellants, the District Collector-cum --Deputy Land Commissioner, Vehari held that the benefit of the provisions of the Land Reforms Regulation, 1972 which was issued on 11-3-1972 was not available to the respondents as the grant of land in their favour had been resumed on 17-8-1974 and the land was thereafter put to public auction. The relevant portion of the order passed by him may be usefully reproduced hereunder; "In 1972, M L R-115 came in vogue and could not give a retrospective benefit to the land which was already resumed and put to auction. The interpretation of the Naib-Tehsild-ar was entirely erroneous and with mala fide intention. The Deputy Land Commissioner had passed clear orders for sanctioning the mutation in favour of the appellants but the Naib-Tehsildar not only flouted these orders by not complying with them but actually sanctioned another mutation in favour of the respondents without any lawful authority. In case it was found that the original order giving proprietary rights to the appellants was not available, proper procedure for the Naib-Tehsildar was to give an opportunity to the parties to provide necessary proof. This was not done, and after cancelling Mutation No. 188, another mutation was entered by him without any lawful cause. The action of Mr. Khalid Masood, Naib-Tehsildar, is highly objectionable as he has exceeded his powers and calls for departmental action against him. 1, therefore, order that the Board of Revenue will be moved for withdrawing his powers and simultaneously Commissioner, Multan Division, Multan will also be approached to charge-sheet him and take departmental action against him. The Patwari and the Girdawar had also acted in collusion with the Naib-Tehsildar and would also be dealt with departmentally.
5. As a result of the above discussion it is very much clear that there was no lawful authority for sanctioning Mutation No. 250 in favour of the respondents, which is allowed to be reviewed. I also direct the Revenue Office concerned to enter a fresh mutation in favour of the appellants and sanction it in the light of the orders passed by the Deputy Land Commissioner, Multan dated 14-3- 1974."
6. The respondents successfully challenged this order before the Commis--sioner/Land Commissioner, Multan but the appellants again succeeded in revision before the Member, Board of Revenue who affirmed the view that prevailed with the learned District Collector/Deputy Land Commissioner, Vehari. The respondents then challenged the order of the learned Member, Board of Revenue in Writ Petition No. 2370 of 1979 in the Lahore High Court which was allowed by a learned Single Judge of that Court by the judgment dated 30-10-1979.
7. Special leave to appeal was granted by this Court in order to examine the question whether the view that prevailed with the learned Single Judge of the High Court on the facts of the case was sound in law.
8. Mr. Perwaiz Akhtar, learned counsel for the appellants submits that on the failure of the respondents to deposit the full amount of the purchase price of the land and also Rs. 100 as penalty in terms of the order of the Deputy Land Commissioner dated 8-8-1966, the order of resumption of land dated 17-8-1964 passed by the Deputy Land Commissioner automatically revived itself, in view of the specific direction contained in the order of the learned Deputy Land Commissioner dated 8-8-1966, and it was, therefore, unnecessary for the appellants to challenge the order of the Deputy Land Commissioner dated 8-8-1966 and the view of the learned Single Judge in the High Court that the appellants ought to have taken steps to challenge that order is totally erroneous. Learned counsel further submitted that the learned Single Judge in the High Court also fell in error in taking the view that "the payment of instalment was also omitted by paragraph 28 of Martial Law Regulation No. 115".
9. According to the learned counsel, the grant of land in favour of the respondents was resumed by the order of the Deputy Land Commissioner dated 17-8-1964 which got confirmed on account of the failure 'of the respondents to deposit the full arrears due against them and also the amount of the fine within the period allowed to them by the Deputy Land Com--missioner by the order dated 8-8-1966, and the benefit of the provisions of paragraph 28 of Land Reforms Regulation, 1972 was not therefore available to them.
10. Since it is the admitted position that the respondents failed to deposit the arrears of the purchase price in spite of the concession accorded to them by the Deputy Land Commissioner by his order dated 8-8-1966, the necessary consequence of that order was that not only the order of resumption o land dated 17-8-1964 passed by the Deputy Land Commissioner stood revived, but the disposal of the land in appellants' favour by way of auction held on 30-5-1965 also stood validated. In view of this clear position, it cannot be said that the respondents were the grantees of the land in dispute on 11-10-1972 when the Land Reforms Regulation, 1972 was issued so as to entitled to the benefit of paragraph 28 of the Regulation. This paragraph reads as under :- "A grantee of land under the repealed Regulation shall' be discharged from all liability in respect of any instalments payable by him under paragraph 19 of the said Regulation.
11. Explanation.-For the purposes of this paragraph grantee of land means;
(a) A tenant, or a resident of the Baluch Area of Dcra Ghazi Khan District referred to in the Pakistan (Punjab Boundary) Order, 1950 (G. G. O. No. 2 of 1950), to whom land was granted under the sale scheme prescribed under the repealed Regulation ; or
(b) A tenant or small land-owner of the village concerned to whom land was granted under the upgrading scheme prescribed under the repealed Regulation."
12. It would be seen from above that the benefit of discharge from liability of any instalments payable under paragraph 19 of the repealed Regulation namely Land Reforms Regulation, 1959 was made available to the person who was a "grantee of land" on 11-3-1972 when the Land Reform Regulation, 1972 was issued, in other words, the person entitled to the benefit was the one in whose favour a grant of land was subsisting on that day. The position of the respondents on 11-3-1972 as regards the land in dispute is concerned clearly was that the grant in their favour stood resumed as of 17- 8-1974 and they had made no effort to renew their grant after 7-9-1966 when the time limit of one month granted to them by the Deputy Land Commissioner by his order dated 8-8-1966 expired. On these admitted B facts, no exception could be made with the view that prevailed with thelearned Member, Board of Revenue that the respondents were not entitled to the benefit of the provision of paragraph 28 of the Land Reforms Regulation, and that the proceedings before him pertained to the mutation in the entries in the revenue record in respect of the land and that the appellants were not entitled to have the land mutated in their favour due t their own failure to deposit the arrears of the purchase price after the expiry of one month's time granted to them under the order of the Deputy Land Commissioner dated 1-8-1966.
13. For these reasons, this appeal must succeed and is accordingly allowed with the result that the impugned judgment of the High Court dated 30-10-1979 is set aside and as a consequence the order of the learned Member, Board of Revenue dated 10-4-1979 is restored and shall prevail in the case.
14. In the circumstances, however, the parties are left to bear their own costs.