MUHAMMAD YOUNIS THAHEEM, J.--- The petitioner has invoked the constitutional jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 with the following relief: "It is therefore, humbly prayed that on acceptance of this writ petition the order of respondent No.1 dated 27.08.2012 may graciously be set aside and declared the order of respondent No.1 as null, void and of no legal effect."
2. Brief facts of the case are that land situated in Khata No.44 to 48, Mouza Saro Shah District Mardan measuring area 13169 PIUs i.e. 222 acres, 04 Kanals and 13 Marlas was resumed under Land Reforms Regulation No.115 and Land Reforms Act II of 1977 on 04.01.1977 from late Mir Afzal Khan the landlord of the area. After resumption the management of Sarfaraz Khan District Hospital Charity Trust, applied for the grant of lease for the said resumed land which was granted and said land was leased out for 10 years w.e.f. 24.12.1977 vide lease dated 25.03.1980 by the then Deputy Land Commissioner with certain conditions particularly submission of declaration and afterward lease was extended for next 30 years which was to be expired in the year 1987. The Federal Land Commission (hereinafter called as FLC) cancelled the lease vide judgment dated 18.02.1990 and Sarfaraz Khan District Hospital Charity Fund feeling aggrieved filed writ petition which was allowed and case was remanded to respondent No.1 for decision afresh, however against the same remand order, the tenants/respondents No.2 to 102 feeling aggrieved filed Civil Petition before the Honourable Supreme Court but the above said remand order passed by this Court was upheld by the Honourable Supreme Court. The Federal Land Commission vide order dated 28.03.1993 withdrew the notice by holding that Federal Land Commission has got no jurisdiction to revise the order of President of Pakistan, however in the year 2011 Sarfaraz Khan Charity Trust surrendered the same resumed land to the Provincial Land Reforms Commission. Thereafter, the present respondents Nos.2 to 102 filed application for cancellation of lease in favour of Sarfaraz Khan Charity Trust and allotment of same resumed land to them being sitting landless tenants which application was dismissed vide order dated 01.01.2012 by the Deputy Land Reforms Commissioner Khyber Pakhtunkhwa. The relevant portion of order is reproduced below: "I am directed to refer your letter No.104/LR dated 17.12.2011 of the subject noted above and to say that the lease in favour of Mr. Sarfaraz Khan Charity Fund needs to be cancelled by the authority that sanction it. As far as allotment of land to sitting tenants presently there is no scheme of government and should not be done."
The tenants/respondents Nos.2 to 102 feeling aggrieved from the aforesaid order dated 01.01.2012 challenged same order before the learned Chairman Federal Land Commission/respondent No.1 by filing revision petition i.e. RP.3(30)/FLC/2012 which after hearing was allowed vide order dated 27.08.2012 and respondents No.1/Deputy Land Reforms Commissioner, Mardan was directed to implement the above said order dated 27.08:2012 for distributing/allotting the said resumed land amongst the sitting tenants i.e. respondents Nos.2 to 102. The present petitioners feeling aggrieved from the order dated 27.08.2012 of respondent No.1/Chairman Federal Land Commission, Islamabad filed instant petition on the grounds mentioned therein. During pendency of the instant petition, CM No.291-P/2017 was filed for impleadment of legal heirs of Mir Afzal Khan as party which was allowed vide order dated 17.01.2017.
3. Arguments heard. Record perused.
4. From the perusal of record it reveals and is admitted position that land in question was resumed under MLR 115 and Land Reforms Act, 1977 by the Federal Land Reforms Commission but instead of distributing the resumed land to the sitting tenants, it was leased out firstly for 10 years to the Sarfaraz Charity Trust which afterward was extended for 30 years onward by the Provincial Land Reforms Commission. The Chairman Federal Land Commission on report of head of the investigation team of FLC took cognizance of the matter of lease of resumed land to the Trust who vide its order/judgment dated 18.02.1990, cancelled the same lease. The said order dated 18.02.1990 was challenged by Sarfaraz Khan Charity Trust by filing writ petition No.140/1990 which was partially allowed as discussed above and tenants/presents respondents Nos.2 to 102 feeling aggrieved from the judgment of this Court dated 23.02.1992, filed Civil Petition No.51-P/1992 before the Hon'ble Apex Court who vide order/judgment maintained the order/judgment of this Court dated 30.02.1992.
Lastly, the Senior Member FLC vide order dated 28.03.1993 vacated the notice issued to the Trust and filed the case. In the meanwhile in the year 2011 the said Sarfaraz Khan Hospital Charity Trust surrendered the same resumed land to the Provincial Land Reforms Commission, upon which the sitting tenants/respondents Nos.2 to 102 moved application for cancellation of lease to the Trust and allotment of the same land to them i.e. respondents Nos.2 to 102 which application was turned down despite No Objection Certificate by the Trust vide order dated 01.01.2012, passed by Deputy Land Commissioner, so the same order was challenged by the present respondents Nos.2 to 102 by filing Revision Petition i.e. RP.3(530)/FLC/2012 which petition after hearing was allowed. The relevant Paragraph of the order, passed by the learned Chairman Federal Land Commission. Islamabad is reproduced as below: "In view of the foregoing arguments of the learned counsel for the petitioners, position available on file relating to the claim of the petitioners and considering the possession of the sitting tenants along with provisions of paragraph 18 of the Land Reforms Regulations, 1972 I hereby accept the instant petition and allot the land mentioned in the respective khata numbers available in the revenue record, which provide the names of tenants before this Court. This allotment is made under the provisions of paragraph 18(3) of MLR-115/72 according to the possession of the tenants.
The stance taken in the para-wise comments by the Provincial Land Reforms Authorities is not legal and against the norms of justice and is also without jurisdiction. The stand taken in the said comments is also against the preamble of the Land Reforms Regulation, 1972 and the Land Reforms Act, 1977, as it purely favours the rights of tenants and the supreme cause given in the preamble relates to the uplift of peasantry i.e. the tenant class. Hence, the directions issued by the Respondents Nos.1, 2 and 3 are set aside as being without lawful authority and of no legal effect.
Deputy Land Commissioner, Mardan/Revenue Staff of the concerned halqa are directed to implement this order of allotment in the revenue record in favour of the petitioners, which have been mentioned in the petition, and is attached with this order. However, land allotted to the tenants shall not exceed 100 kanals or 12-1/2 acres as given in the Regulations/Act DLC, Mardan is further directed to submit compliance report of this order to the Register, FLC within a fortnight on its official receipt,"
5. Here it is pertinent to mention that the office of Advocate General Khyber Pakhtunkhwa, Peshawar was consulted by the SMBR for legal opinion in view of judgment passed in Revision Petition RP.3 (530)/FLC/2012. The office of Advocate General put forward his opinion which is reproduced as below: After resumption of land despite distributing it to the peasantry it was delivered to the same land owner in the name of charitable trust which offended the very cause of Land Reforms and now since the Charity Trust has surrendered it and have got no objection, so if the same land is allotted to the sitting tenants, therefore, he opined that: "I do not see any reason why the same shall not be given to the peasants within the terms of the law on the subject."
6. Though the previous lease holder i.e. said Charity Trust has no concern with the resumed land even then the management of said Trust submitted No Objection Certificate (NOC) signed by the Admn: Manager Premier Sugar Mills Retired Major Shoukat Ali Khan dated 13.09.2011 that the Charity Trust has got no objection if the same resumed land is allotted to the sitting tenants. The revenue record annexed with the writ petition also supports that respondents Nos.2 to 102 are sitting tenants of the land at the time of resumption and during lease period of said Trust, so the respondents Nos.2 to 102 are coming tenants of the resumed land since their forefathers.
7. Thus after examining the record and the case law on the subject, this Court is of the view that first of all the petitioners have no locus standi and cause of action to file the instant petition to challenge the order, passed by Chairman FLC which is superior forum in the hierarchy of Federal Land Reforms Commission. Secondly, the land was basically resumed from original land owners for its aim and purpose of distribution/allotment to the sitting tenants and not to government officers whether Federal or Provincial or lease it out to someone else instead of tenant under the Land Reforms Laws in any garb, however after the judgment passed in Qazalbash' s case cited as PLD 1990 SC 99, vide which fresh resumption of land for the purpose of Land Reforms was declared against the injunctions of Islam but it was not held in said judgment that resumed land for the purpose and aim to distribute it to the landless tenants will not be distributed or allotted to the sitting landless tenants and has not given any direction that instead of allotting resumed land to the landless tenants, it be allotted to officers or employees of Federal as well as Provincial Government employees or to lease it out or to utilize it against the aim and object of the Land Reforms Laws rather resumption made from 1972 under MLR 115 and ibid Act, 1977 was saved. In the instant case it has been noticed that instead of distributing the same resumed land to the sitting tenants, it was leased out to the original owner in the name of Trust who in turn received millions of rupees from the old sitting tenants. So the order. dated 27.08.2012 impugned herein passed by Chairman FLC is in accordance with Land Reforms Laws and is not against the injunctions of Islam.
8. This Court found no any illegality in it rather the same order dated 27.08.2012 is a step for the accomplishment of object and purpose of Land Reforms Program for which land in excess of determined ceiling was resumed to distribute it to the sitting landless tenants, so in the instant case tenants/respondents Nos.2 to 102 were entitled for allotment since the resumption of land under Land Reforms Regulation and ibid Act, 1977, hence their right for allotment subsisted by the operation of law as the laws are still in field, it requires no any scheme by the Provincial government for the distribution of resumed land, therefore, the Chairman FLC had correctly set aside the order passed by Deputy Land Commissioner, Mardan dated 01.01.2012. Moreover, the land A resumed has not been freshly resumed from the original land owner but it was resumed only with aim, object and purpose to allot/donate the same to the sitting landless tenants for same purpose Land Reforms Commission was constituted and due to inaction of Federal Land Reforms Commission from the date of resumption by not allotting resumed land to sitting tenants shall not be affected adversely, so the cut date in Qazalbash's case dated 23.03.1990 does not create any hurdle for allotment of resumed land to the landless sitting tenants according to Land Reforms Laws, Rules and Regulations.
9. Moreso, resumption of land under Land Reforms Laws has been saved in the judgment of Qazalbash's case, so the original land owners though after resumption has no concern whatsoever with the resumed land even then in the instant case he/they have got no objection as discussed above if the same resumed land is distributed amongst sitting tenants i.e. respondents Nos.2 to 102.
This Court is of the view that if the said resumed land is utilized other than the purpose ordained in the Land Reforms Laws, then it would be great injustice to the sitting tenants and would amount making Land Reforms Laws as effectless on one pretext or the other. Moreover, the Land Reforms Laws are still in field and the Parliament of Pakistan has not repealed these laws, so are effective from the date of their commencement. It is further observed that different land Mafias including the officers of Federal as well as of Provincial government employees are behind such resumed and other government lands to grab it which is very unfortunate, so the concerned Land Reforms Commission's officers must take notice of it and distribute the resumed land in K.P.K to the sitting tenants as they are holding their offices for the accomplishment and fulfillment of very purpose and object of Land Reforms Program as huge amount in form of salaries is paid to the employees of the commission.
10. Thus what has been discussed above, we are of the view that this petition being bereft of merits, is dismissed.