K. E. CHAUHAN, J.--It is not necessary to give lengthy details and the stages through which the litigation between the parties passed in view of the order which we are proposing to pass in this case. It will be sufficient to state that by means of his order, dated 17-11-1965, the Deputy Land Commissioner allowed the respondent No, 3 to retain an area of ten kanals and ten marks of land as an "orchard" under para. 9(e) of the Land Reforms Regulation No, 64 (hereinafter called the Regulation). The petitioner who was a purchaser during the interregnum when the case of respondent No, 3 was pending before the Land Commissioner Authorities (the details of which litigation we have avoided to mention but which fact is otherwise admitted), filed a revision against the said order, which was heard by Mr. Abu Nasr, the Chief Land Commissioner. The Chief Land Commissioner dismissed that revision as time-barred but then proceeded to invoke his suo motu revisional jurisdiction in order to examine the legality and propriety of the order impugned before him. Proceeding in that way, he referred to paragraph 70, which is printed at page 57 of the Book "Land Reforms in Pakistan", Volume I. This para. reads as follows :- "70. Cases came to notice in which land-owners had already alienated by gifts areas equivalent to 18000 produce index units or more. A question arose as to whether such landowners could be allowed to retain areas under orchards up to the limit of 150 acres in addition to the area permissible under paragraph 8 or paragraph 9(a) of the Regulation. The Commission decided that an existing owner who has transferred by gift more than 18000 produce index units of land to his heirs could retain area under orchards up to 150 acres in addition to the area to which he is entitled under paragraphs 8 and 9 of the Regulation as the exemption granted under paragragh 9(e) is independent of any other condition. The provisions of paragraph 9(f) of the Regulation do not restrict the rights of an existing owner under paragraph 9(e)."
After referring to the said para., the learned Chief Land Commissioner allowed respondent No, 3 the choice of retaining a garden under para. 9(e) read with sub-para. ( f ) of the Land Reforms Regulation. The petitioner has come up in writ petition against the aforesaid orders of the Land Commission Authorities.
2. In para. 8(g) of the writ petition the petitioner had pleaded that respondent No, 3 could not obtain concession of retaining the orchard as he had already gifted an area worth 18000, P. I. Units to his heirs. It is a common-ground before us that under sub-paras. (e) and ( f ) of para. 9 of the Land Reforms Regulation, an existing owner can give away land to his heirs provided the area so gifted, if taken along with the gifts already made after 14-8-1947, and the area retained as an orchard, does not exceed 18000 P. L Units. In that view of the matter, the commentary contained in para. 70, reproduced above, does not seem to be correct and if the Chief Land Commissioner purported to act under the same, his order will clearly be in excess of his jurisdiction and will have to be so declared. Apart from admission of the learned counsel for the parties, we have examined the point ourselves and we find that their admission of this legal aspect is quite justified. Paras.
8and 9 of the Land Reforms Regulation read as follows:- "8. Limits on individual holdings.--Save as otherwise provided in this Regulation, no person shall, at any time, own or in any capacity possess land in excess of five hundred acres of irrigated land or one thousand acres of unirrigated land, or irrigated and unirrigated land the aggregate area of which exceeds five hundred acres of irrigated land one acre of irrigated land being reckoned as equivalent to two acres of unirrigated land, and any reference in this Regulation to an acre of irrigated land shall be construed accordingly.
9. Exemptions.--Notwithstanding the provisions of paragraph 8,- (a)an existing owner may retain, out of his present holding such additional area, if any, which would bring the total area retained by him to the equivalent of thirty-six thousand produce index units ; (b)a recognised educational institution or a university may own or possess such additional area as it may need for the purpose of research or demonstration ; (c)except in cases provided for in paragraph 10 Government may allow charitable or religious institution approved by it to own or possess any additional area ; Government may, in public interest, allow owners or Mohd. Yar . operators of recognized existing stud and livestock farms to v Chief Land retain such additional areas under such farms as it considers Corn nr. necessary for the purpose, for so long as such areas are maintained as stud and livestock farms : Provided that in the case of stud farms owned or controlled Chauhan, by Government, it shall be presumed that such farms are being maintained in public interest and the areas under them are necessary for the purpose ; (d)An existing owner may retain, out of his present holding such additional areas, not exceeding hundred and fifty acres, as may be under orchard, for so long as it is maintained as such: Provided that- (i)the area under orchard is in compact blocks of not less than ten acres each ; and (ii)it has been shown as area under orchard in the revenue records at least since Rabi 1956-57 ; ( f) an existing owner whose holding is greater than the area of five hundred acres of irrigated land or the equivalent of thirty-six thousand produce index units may transfer to any or all of his heirs such additional area, if any, as taken together with any area gifted by him to all or any of his heirs on or after the fourteenth day of August 1947, and any area retained by him under clause (e) above, would bring the aggregate area so transferred to the equivalent of eighteen thousand produce index units : Provided that the maximum area permissible to be retained under clause (e) shall, in no case, be treated as more than the equivalant of six thousand produce index units.
Explanation.--A person who came into ownership or possession by virtue of a gift made on or after the fourteenth day of August 1947, shall not, where the donor is alive, be entitled to claim as existing owner the benefit of exemption under clause (e) or clause ( f ).
3. The above provisions show (so far as relevant for the present case)-- (i)that an existing owner can retain land in the form of acreage up to the extent mentioned in paragraph 8 of the Regulation ; (ii)however, when converted into produce index units, the area retained remains less than 36000 units, then he can retain such additional area which would bring the total area retained by him to the equivalent of 36000 produce index units ; (iii)he can also retain such additional area not exceeding 150 acres, as may be under orchard for so long as it is maintained as such. But the conditions are that the area under orchard is in compact blocks of not less than ten acres each and it has been shown as area under orchard in the revenue records at least since Rabi 1956-57, and (iv)in cases where ; (a)the holding is greater than the area of 500 acres of irrigated land or ; (b)holding is greater than the equivalent of 36000 produce index units--An existing owner can transfer to all or any of heirs (i) such additional area which taken together with (ii) any area gifted by him to all or any of his heirs on or after the 14th day of August 1947 and (iii) any area retained by him under clause (e) above would bring the aggregated area so transferred to the equivalent of 18000 produe index units.
(v) In cases of orchard, the maximum area permissible shall in no case be treated as more than the equivalent of 6000 produce index units.
This means that under sub-paragraphs (e) and ( f ) of paragraph 9 of the Regulation, the aggregate of the types or concessions allowed shall not exceed 18000 produce index units. The view contained in the form of commentary in paragraph 70 at pages 57-58 of the book hereinbefore mentioned is thus not correct. The correct view is contained in the form of another commentary at page 60 of the same book in the form of commentary in para. 74. It reads as follows : "74. The President's Cabinet accepted the principle of the above recommendation and decided that an existing owner whose holding is more than the equivalent of 36000 produce index units, may transfer to any or all of his heirs such additional area, if any, which taken together with any area gifted by him to any or all of them on or after the 14th August 1947 and any area retained by him under orchards will bring the aggregate of the area so transferred to the equivalent of 18000 produce index units provided that the maximum area permissible under orchards shall, in no case be treated as more than the equivalent of 6000 produce index units."
4. It is to be reiterated that in sub-para. (g) of para. 8 of the writ petition, a categorical averment was made that the ceiling of 18000 produce index units has been violated. This allegation was not denied specifically, and rather in the general arguments it was in a way admitted before us by the learned counsel for respondent No, 3, that this figure may have exceeded in this case. In the face of that situation, we are thus left with no option but to declare (which we hereby do) the order of the learned Chief. Land Commissioner to be without lawful authority in so far as it purported to allow an area of more than 18000 produce index units under para. 9(e) and ( f ) of the aforesaid Regulation. The declaration granted is only with regard to the excess area and is not intended to disallow the orchard, which has been permitted to be retained by the learned Chief Land Commissioner. The writ petition is partially accepted ; the case is remanded to the learned Chief Land Commissioner, to examine as to how much is the excess over and above 18000 produce index units and then decide the question of taking away of that excess in such manner as the law may warrant. Learned counsel for respondent No, 3 submitted that in a case of present kind, where after taking into account various aspects, if any excess is found, then the same is to be taken away from the new gifts which were permitted to be made under the Regulation itself. He can raise this point before the learned Chief Land Commissioner who, we are sure, will deal with the same in accordance with law. On our part as indicated above, we have not disallowed the retention of the orchard. Since this order is based mostly on the consent of the parties, there will be no order as to costs.