Shahid Jamil Khan, J. This Intra Court Appeal is fixed after remand by the august Supreme Court of Pakistan vide order dated 25.09.2017 in Civil Appeals No. 15 of 201 1 etc. The appeal was earlier dismissed vide judgment dated 28.10.2008, being not maintainable in view of bar contained under proviso to Section 3(2) of the Law Reforms Ordinance, 1972, ("Ordinance of 1972") holding that remedy of review/revision was available. Operative part of the remand order is reproduced hereunder:- "With consent of all the concerned before us, conceding that the ICAs before the learned High Court were competent , we allow these appeals, set aside the impugned judgments and remand the matters to the learned High Court for decision afresh of the ICAs on merits"
(emphasis supplied)
2. Though ICA No. 157 of 1995 is noted alongwith captioned ICA in title of the remand order by the Supreme Court of Pakistan, which appears to be a typographical mistake, therefore, it is clarified that this number is of the writ petition, acceptance of which is assailed through the instant appeal.
The writ petition was accepted vide judgment dated 04.01.2002 by learned Single Bench, where-under notices dated 28.07.1994 issued by Deputy Land Commissioner , Attock ("DLC") were quashed by declaring them as without lawful authority and of no legal ef fect.
Order sheet shows that the respondents are not appearing despite repeated notices and learned counsel for the appellant has complained, at the outset, that the appeal is pending since 2002. Learned counsel was allowed to argue the case on merits in absence of the respondents.
3. Relevant facts are that respondent No.1 (Mst. Sanam Iqbal) made declaration of her holdings under Section 7(1) of the Ordinance of 1972 read with Land Reforms Regulations, 1972 ("MLR 115"). The declaration was held valid by the Land Commissioner , Rawalpindi vide order dated 05.06.1972, however , on a complaint regarding transactions of alienating the land by the declarant during September 1969 to October 1970, the validation order was set aside by holding the transactions of alienation/sale as void through order dated 07.09.1976 by Chairman Federal Land Commission, Islamabad ("Chairman").
This order was challenged in Writ Petition No.409 of 1977, which was dismissed on 19.04.1981. Civil Appeal No. 281 of 1988 against order of dismissal was also dismissed by Hon'ble Supreme Court of Pakistan vide judgment dated 23.08.1992.
It is important to note here that during the proceedings of Civil Appeal, Supreme Court declared the Regulations (MLR 115) and some provisions of the Land Reforms Act, 1977 ("Act of 1977") as repugnant to the injunctions of Islam and Sunnah w.e.f. 23.03.1990 ("cutoff date") through judgment in Qazalbash Waqf and others v. Chief Land Commissioner , Punjab, Lahore and others (PLD 1990 S.C. 99). Nevertheless, the transactions completed before the cutof f date, being past and closed transactions, were protected.
DLC issued notices dated 28.07.1994, in pursuance of order by the Chairman, for resumption of the land, which were challenged through the writ petitio n. The writ petition was allowed and the impugned judgment dated 04.01.2002 is being assailed through this appeal.
4. During proceedings of the writ petition, some tenants of declarant' s land, filed Writ Petitions No. 79 to 82 of 1996, besides moving applications under Order I Rule 10 of the CPC for impleadment as necessary party . The applications were allowed vide order dated 27.10.1999 for the reason that Chairman in its order dated 07.09.1976 had directed the DLC to determine the holding of the declarant afresh and resume the surplus land and distribute it amongst deserving tenants within 15 days of receipt of the copy of order .
Main writ petition was accepted, conse quently , the writ petitions of tenants, noted above, were dismissed.
Operative part of the order is reproduced hereunder:- "9. Now 'the dispute' on one hand is regarding determination of holding of the declarant afresh and resuming the surplus land and distributing it amongst the deserving tenants on the other hand . Admittedly the tenants have filed the above mentioned connected writ petiti ons wherein the tenants stated that the Deputy Commissioner , Attock has issued the impugned orders and the proceedings have not yet been finalized.
10. The 'other question' , which needs interpretation in this case, is whether the land vests in the Government by virtue of self-executory provisions of the said Act before 23.3.1990. Till the filing of declaration under section 6 of the Act by a person regarding excess land or determination of the question by the land reform authorities under section 6(5) of the said act, in case no such declaration has been filed, the land under the said Act did not vest in the Federal Government and continues to be held and managed by the petitioners . Since the provisions of the said Act regarding vesting of the excess land in the Federal Government had not taken effect before 23.3.1990, therefore, after the said date the law having ceased to be the law, the Land Reform Authorities, and for that matter the Federal Government was not vested with any power or jurisdiction to deal with the land or to issue any direction regarding the orders passed by the respondent in respect of the said land in exercise of the power vested in them.
It is admitted position that on promulgation of the Land Reforms Act, 1977 the excess land of any person shall not automatically vests in the Federal Govern ment, therefore, the provisions of the Act as regards vesting of the land shall not take the effect from the date of promulgation of the Act itself because determination has to follow in pursuance of the declaration and on submission of the declaration by an express order that such a person possesses the excess land or it vests in the Federal Government as contemplated by section 9(2) of the Act. If the excess land had already wasted on the date of coming into force of the Land Reforms Act, 1977, then the provisions of the law providing vesting of land on submission of declaration or the determination to be made by the authorities under section 7(5) of the Act will have to be redundant. It is by now well-settled that self-executory is by now well-settled that self-executory provisions of the Act regarding vesting of land were to become operative either on submission of declaration , which would be acknowledgement of the fact that the land possessed or owned by a person was in excess of permissible limits which itself would amount to determination by the authorities on the basis of such admission that he was poss essing land in excess or on determination to be made by the authorities under section 7(5) of the Act or not before that. If such a declaration or determination had been made before 23.3.1990 by virtue of which the excess land had vested in the Federal Government before the said date, the Land Reforms Authorities could get completed the other formalities regarding selection of land by such a person for surrendering it to the Government. The provisions of para 25 of Land Reforms Regulation 1972 (MLR 122), Land Reforms Act (II of 1977) came for interpretation before the Hon'ble Supreme Court in case of Chief Land Commissioner , Punjab and others Vs. Chief Administrator of Auqaf, Punjab & others (PLD 1998 SC 132) and the Hon'ble Supreme Court had taken the view that:- "----Excess land, if any, of Waqf did not automatically vest in Government on promulgation/enactment of Land Reforms Regulation, 1972/Land Reforms Act, 1977 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."
The decision in case of Hakam Khan vs. Government of Pakist an (PLD 1992 SC 595) and Mst. Kaneez Fatima vs. Wali Muhammad (PLD 1993 SC 901) will not help the respondent Federal Land Commission. Since determination had not been made in this case by the respondents before 23.3.1990, by virtue of which the excess land had vested in the Federal Government before the said date, the Land Reforms Authorities cannot get completed the other formalities regarding selection of land of such a person for surrendering it to the Government.
For the foregoing reasons, the instant writ petition is accepted. The notice issued by the Deputy Land Commissioner , Attock, dated 28.7.1994 is declared to have been issued without lawful authority and is of no legal effect and is quashed.
The other connected writ petitions Nos. 79 to 82 of 1996 and W .P. No. 1705 of 1995 are dismissed."
(emphasis supplied)
5. Learned counsel for the appellant (Chairman) raised preliminary objections on maintainability of writ petition submitting that appeal, review and revision was available under the Ordinance of 1972, therefore, the writ petition was liable to be dismissed.
Arguing second preliminary objection learned counsel submitted that the writ petition was to be fixed and heard by a Division Bench of this Court, therefore, the main judgment is without jurisdiction. On Court' s query , he could not establish that this preliminary objection was raised before learned Single Bench.
On merits, learned counsel for the appellant has reiterated that after dismissal of writ petitions and appeal by the Apex Court against order dated 07.09.1976 by the Chairman, the issue had attained finality and the notices by DLC were issued to finalize the order for the holdings, alienation/sale of which was declared as void.
6. Heard. Record perused.
7. First objection on maintainability of writ petition has no force for two reasons. First that this ICA was earlier dismissed on same ground and was remanded with consent of the parties. Secondly , the notices dated 28.07.1994 by DLC, were challenged on the ground of jurisdiction, against which no appeal, review or revision was available. It is by now settled that a show cause notice can be challenged in constitutional jurisdiction, for lacking jurisdiction.
An action through a show cause notice, found to be without jurisdiction, patently illegal or with mala-fide intent, had to be nipped in the bud. Reference in this regard can be made to Commissioner of Income Tax v. Messr s Eli Lilly Pakistan (Pvt.) Ltd. (2009 SCMR 1279 ), Al Ahram Builders (Pvt.) Ltd. v. Income Tax Tribunal (1993 SCMR 29), The Murree Brewery Co. Ltd. v. Pakistan through the Secretary to Government of Pakistan, Works Division and 2 others (PLD 1971 S.C. 279), Reliance Commodities (Private) Ltd. v. Federation Of Pakistan and others (PLD 2020 Lahore 632), Dr. Fatima Arshad v. Government of the Punjab and others (2020 PLC (C.S.) 688), Messrs Pakistan Oilfields Limited through General Manager v. Federation of Pakistan through Ministry of Finance and 4 others (2020 PTD 110) and Messers J.K. Brothers Pakistan (Pvt.) Ltd.
Through Director v . The Additional Commissioner Inland Revenue and another ( 2016 PTD 461 ).
8. Second objection on maintainability , at this belated stage in second round of litigation, if entertained, would cause further delay in deciding the lis on merits, which is pending for more than two decades. If this objection is accepted, at the most, the petition would be again filed before Division Bench and jurisdiction to issue impugned notices would be examined denovo . By entertaining this ICA, though on Supreme Court' s direction, this Division Bench is examining the lis on merits, while exercising same constitutional jurisdiction at appellate stage. It is also settled by now that Appellate Court exercises the same power which vests in the Court, order of which is challenged in appeal. We are fortified for this view from the judgments in Khaliqdad Khan and others v. Mst.
Zeenat Khatoon and others (2010 SCMR 1370 ), Multan Electric Power Company Ltd. through Chief Executive and another v. Muhammad Ashiq and others (PLD 2006 S.C. 328), Mst. Khadija Begum and 2 others v. Mst. Yasmeen and 4 others (PLD 2001 S.C. 355) and North-W est Frontier Province Government, Peshawar through Collector , Abbottab ad and another v. Abdul Ghafoor Khan through Legal Heirs and 2 others ( PLD 1993 S.C. 418 ).
We, therefore, are not inclined to entertain this objection either , at this stage, under the circumstances of litigating history of this case.
9. On merits, it was neither disputed before learned Single Bench nor before us that the provisions of the Act of 1977 and MLR 115 had been declared as repugnant to the injunctions of Islam by the judgment in Qazalbash Waqf's Case, supra , where-under 23rd March, 1990 was fixed as cutof f date, on which the provision would cease to have ef fect. Relevant paragraphs No.6 & 7 from the "ORDER OF THE COUR T" are reproduced for facility:- "6. This decision shall take effect on 23rd March, 1990 whereupon the provision declared repugnant to the injunctions will cease to have ef fect.
7. The operation of the self-executory provisions of the Regulation and the Act, and the provisions ancillary thereto shall not in any manner be affected by this decision till the aforesaid provision s cease to have effect i.e. on 23.3.1990."
The question need to be examined, in this backdrop, is Whether resumption of the surplus land had been finalized, in this case, in presence of the order dated 07.09.1976 by Chairman, operative of which is reproduced:- "In view of these facts I feel fully convinced that all the transfers suffer from the requirement of a valid transaction as required by EXP.III of Paragraph 7(1)(b) of MLR 115. Accordingly I set aside the validation orders passed by the lower Land Reforms Authorities and declare the transfers as void. The DLC is directed to determine the holding of the declarant afresh and resume the surplus land and distribute it amongst the deserving tenants within 15 days of the receipt of the copy of the order ."
(emphasis supplied)
In our opinion, by setting aside the validation order , the declaration by the respondent stood discarded and case was placed at pre-declaration stage. The direction to DLC for determining the holding of declarent (Respondent No.1) afresh, was to be implemented in exercise of powers under Section 7(5). Relevant provisions of Section 7 are reproduced:- "7. Declarations. (1) Provincial Land Commission may by notification in the official Gazette, require that any person or class of persons mentioned therein, shall submit such declarations to such authority , in such manner and form and by such date, as may be specified in the notification.
(2) ....
(3) ....
(4) ....
(5) Whereas Person fails to make a declaration under this section , an officer of the district concerned, who is authorized by a Commission in this behalf, shall, of his own motion or otherwise, and after calling for such information and recording such evidence as he may deem necessary , determine the land owned or possessed by such person in excess to his entitlement under the Act and make an order to this ef fect: Provided that the order made under this sub-section shall be subject to confirmation by the Commission concerned within three months of making such order ."
(emphasis supplied)
10. After completing the process/proceedings for resumption of surplus land, it vests with the Government for further distribution amongst the tenants. Section 9 tells when the surplus land, on declaration or after its determination vests with the Government, therefore, is reproduced:- "9. Vesting in Government of excess land.- (1) Land in excess of the area permissible for retention by a person under section 3, shall be surrendered by him to the Land Commission of the Province where such land is situate, and it shall vest in Government free of any encumbrance of charge: Provided that rights and obligations of any person in respect of the standing crops on land surrendered under this section shall remain unaffected until the standing crops are removed or the 30th day of June next following, whichever is earlier .
(2) Land determined, under sub-section (5) of section 7, to be in excess to the entitlement of a person shall vest forthwith in the Government free of any encumbrance or charge and the defaulter shall be deemed to have forfeited the right and option under section 4.
(3) Any land under litigation which is in excess to the entitlement of a person under this Act, shall vest in the Government subject to the final adjudication of the rights of the litigants.
(4) Any land surrendered by a person which was in his possession as a lessee or mortgagee shall not vest in Government but shall, subject to the provision of section 3, revert to lessor or mortgagor , as the case may be.
(5) Any land surrendered by a person which was held by him as the landlord of an occupancy tenant or a Muqarraridar or as an Ala Malik shall not vest in Government but shall, subject to the other provisions of this Act, vest in the occupancy tenant, Muqarraridar or Adna Malik, as the case may be, free from any encumbrance or charge."
(emphasis supplied)
It has already been held in Chief Land Commissioner , Punjab and others v. Chief Administrator of Auqaf, Punjab & others (PLD 1998 S.C. 132), that surplus or excess land did not automatically vest in the Government on promulgation of the Act of 1977 and some steps had to be taken by the owner or the Land Reforms Authorities before the cutof f date (23.03.1990).
11. Accumulative reading of, inter alia, Sections 7 & 9 of the Act of 1977, shows that a person holding land in excess of the area permissible for retention (see Section 3), shall be required to surrender land through a notification, in official Gazettee. Under Section 7(1), the person or class of persons so required, shall submit a declaration. The declaration, after going through the formalities, if required, is a step of surrendering the land which shall vest in the Government under Section 9(1). If such declaration is not made or the declaration made is not in the manner and form and by such date as specified in the notification (see Section 7(1)) , an officer authorized by a Commission in this regard, shall determine the land owned or possessed by such person in excess of his entitlement through an order to this effect (see Section 7(5)). Land determined, under Section 7(5), to be in excess of entitlement shall vest forthwith in the Government. Self-executory provisions would come into operation on taking of such necessary steps till the cutof f date. Another judgment by a learned Division Bench of this Court, expressing similar opinion in Khan Muhammad and 6 others v. Federal Land Commission through Senior Member , Islamabad and 6 others ( 2008 CLC 467 ) is referred for strength.
12. The direction by the Chairman, ibid, is inconsonance with these provisions, which requires determination, after calling information and recording evidence. The determination of the entitled and excess land would not be final as it was subject to confirmation by Commission concerned within three months. Learned Single Judge has rightly held that in absence of any declaration by the land owner (respondent No.1) and determination under Section 7(5) of the Act of 1977, the land did not vest in the Federal Government. Since the provisions of the Act of 1977 are not effective from 23.03.1990 to vest the surplus land with Federal Government, therefore the law, cease to had effect, could not be invoked to issue impugned notices dated 28.07.1994 by the DLC.
13. Writ Petitions by the tenants were rightly dismissed. Because they could claim entitlement to the surplus land as deserving tenants, if the procedure/pr oceedings under Section 7(5) were completed before 23rd March 1990.
Even then they were required to be assessed or declared as deserving tenants under the provisions of law.
Learned counsel (Ms. Rubina Mahmood Khan Saddozai), representing one of the tenants could not convince us that entitlement to allotment of land had matured, which could be enforced through their independent writ petitions or be granted in main writ petition, as they had been impleaded as parties. Technical objection of not impleading the tenants as party in this ICA has also no force, because their right to audience could accrue on acceptance of the writ petition, where-after concerned Land Commissioner could be directed to consider them for allotment of surplus land.
Despite effort, during proceedings, learned counsel for the tenant, could not point out that independent ICAs of the tenants are pending. No ICA with number , provided by learned counsel for the tenant, is pending adjudication before this Court, as per of fice report.
14. For the reasons, hereinabove, this appeal is dismissed, being devoid of merits and the judgmen t by learned Single Bench is upheld.