' K.A.GRANI, J.--By this Petition filed under Article 199 of the Constitution of Pakistan, 1973, the Petitioner inter alia seeks the following reliefs:- "I.To declare that the following orders:
(i) The order passed by the first Respondent which is mentioned in letter, dated 16-1-1979 (X-14);
(ii) The order, dated 23-4-1978 passed by the delegatee of the first respondent in so far as the decision on the points of the entitlement of the petitioners in respect of their revised M.R.V., dated 9-7-1974 (X-6);
(iii) The Memo. issued by the first respondent in July, 1976 regarding re-allotment of surrendered lands under M.L.R.-89 in satisfaction of claims after receipt of revised M.R.V. (X-6); ' and any other order or orders passed in pursuance or implementation of any of the above orders, are orders passed without lawful authority and of no legal consequences; II. To declare that the case of petitioner for satisfaction of their claim in respect of the revised M.R.V. issued to them on 9-7-1974 (X-6) was a "pending" claim at the time of the promulgation of the repealing Ordinance XV of 1974/Act XIV of 1975 and that the petitioners are entitled to the satisfaction of their revised claim as such, in accordance with the provisions of the Displaced Persons (Land Settlement) Act, 1958 and further that the Revised M.R.V., dated 9-7-1974 should effect from the date of the wrong and illegal M.R.V. issued to the petitioners on 2-12-1959 (X-1)."
1. The brief facts of the case leading to the filing of this Petition are that the petitioners alongwith the respondents Nos. 2 to 4 who are members of the family which in the Petition has been described as Fazli family, filed claim under Act No,III of 1956 for properties left behind .n India which claim was verified by the Deputy Claims Commission by order, dated 14th September, 1959, on the basis of which QPR-V was issued jointly in the name of the entire Fazli family on 2-12-1959 showing 26,873 P.I.Us. for ordinary agricultural land and 1349 Garden Units, total 28,222 Units. Perusal of the said QPR-V shows that the share of each of the 10 members of the said family was shown separately verified as follows:- Mst Khurshid Bibi Begum 35291703359 Sayyidda Fazal Fatima Fazli1900911809 Sayyidda Fazal Aisha Fazli 1900911809 Sayyidda Fazal Mariyam Fazli1900911809 Sayyidda Fazal Sultana Fazli1900911809 Sayyidda Fazal Surriya Fazli1900911809 Sayyid Fazal Ahmad Karim 37981815618 Sayyid Fazal Sabtain Fazli 37981813617 Sayyid Fazal Masood Fazli 37991813617 Sayyid Fazal Wadood Fazli37991813617 ' Fazli family in settlement of their claim was allotted and given possession of agricultural lands in Deh 108 Tapo and. Taluka Mirpurkhas as well as in Deh Mubarak Reti and Jamesabad District Mirpurkhas and also 22 acres of garden land in Deh 109, Circle Mirpurkhas consisting of Survey Nos.18, 170 and 171 and 172.
2. Subsequently M.L.R.-89 was promulgated on 23rd August, 1981, pursuant to which the members of the Fazli family being claimants with verified claims separately shown as mentioned above, were issued one single M.R.V. in the joint names of all the 10 members of the said family on 25th September, 1961 reducing their total entitlement from 28,222 P.I.Us. to 4,150 P.I.Us.
' It is the case of the petitioner that in view of the wrong M.R.V./entitlement certificate issued in the joint names of all the 10 family members of the Fazli family as mentioned above, they as law- abiding citizens in compliance of the provisions of the said M.L.R.-89 retained the entire garden land in Deh 109 and some other lands in Deh 108 but were obliged to surrender excess land i.e, 51 acres of the land in Deh 108 and the entire holdings in Deh Reti and Jamesabad. They however exercised option to repurchase these surrendered lands and started paying installments for the same.
3 (i) It appears that in the meantime the petitioners had made representations for issuance of entitlement certificates verified separately in the names of each the 10 claimants/members of Fazli family. However, the Chief Settlement Commissioner on their application, dated 17th August, 1965 by his letter, dated 10th September, 1965 informed them that their request for issuance of separate entitlement certificates could not be acceded to.
(ii) The above order was challenged by all the 10 family members of Fazli Family by filing on 13-12- 1965, Writ Petition No,437-R/1965, in the then High Court of West Pakistan at Lahore. The said Petition was summarily rejected on technical ground as not maintainable by the order passed on 30th November, 1966, against which order Letters Patent Appeal No,86/1967 was filed at Lahore. It was admitted for regular hearing and status quo was ordered to be maintained by ad interim order passed on 28-7-1967, which order was confirmed by order made on 16th September, 1970. During the pendency of the said appeal, S.Wadood Fazli and Mst. Khurshid Jahan (mother) died, and their respective legal representatives were brought on record.
4. It, however, appears that while L.P.A.66/1967 referred to above, was pending disposal in the High Court, the Central Government issued Order No,F-1(10)/70-SLI, dated 26th-27th March, .1971 to the Chief Settlement Commissioner, giving directions therein as follows:- " the question whether entitlement of every claimant in a registered and verified joint claim can be determined afresh under M.L.R.-89 of 1961, was thoroughly examined but it is found that this can be done only in cases where entitlement to P.I. Units of each of the claimant in a joint claim was separately determined and not in cases where entitlement to P.I.Units of each of the claimant in a joint claim was not separately determined. The entitlement of every Displaced Person is to be determined afresh in accordance with the slab laid down in paragraph 5 of M.L.R.-89 of 1961. Under this paragraph P.I.Units to which claimant was entitled under a claim previously verified, were to be cut down from his claim in the ratio specified therein. Thus, para 5 comes into operation only if the P.I. Units of every claimant is previously determined afresh in accordance with the slab laid down in the paragraph. In a claim jointly preferred by displaced persons for one reason or the other, where entitlement of every claimant was riot separately determined to the P.1. Units, there can be no fresh determination of such claimant's entitlement in accordance with the slab laid down in the said paragraph."
' In view of the above-mentioned direction of the Central Govern ment, the members of the Fazli family, succeeded in getting the earlier M.R.V. issued on 25th September, 1961 for 4,150 P.I.Us. modified and supplementary M.R.V. was issued to them on 2-7-1974 for 17,609 P.I.Us as shown in Annexure X-5 to the present petition. As there appeared to be some clerical mistake in calculations, Ilnd Supplementary M.R.V. was issued to them on 9th July, 1974 for 18,342 P.I.Us.
(Annexure X-6 to the Petition).
' In view of the above subsequent development, the petitioners, grievance which was the subject- matter of the L.P.A. No,86/1967 pending in the High Court, no longer remained subsisting. The said appeal was thus not pur4ued and was dismissed by the High Court at Karachi (where it was received by transfer and renumbered as H.C.A.38/74) by order passed on 21-11-1975 for default as none appeared on behalf of the appellants before the Court, when the same was called for hearing.
5. In the above circumstances armed with the IInd Supplementary M.R.V. (Annexure 6) the Petitioners and other members of the Pazli family sometime after 9-7-1974 approached the settlement Authorities at Mirpurkhas with the plea that on the basis of the said entitlement certificate the agricultural lands earlier allotted to them (including the land earlier surrendered by them) which continued in their possession since before M.L.R.-69 was promulgated be given to them in satisfaction of their entitlement as per Supplementary M.R.Vs. issued on 2nd July, 1974, 1974 and 9th July, 1974. It was further contended that the alleged land was wrongly surrendered by them on the basis of M.R.V. originally issued to them for 4,572 P.I.Us., that they were compelled to surrender the land under threat of confiscation of their property under para 10 of the said M.L.R.-89 and that they had no option but to repurchase and retain its possession by exercising option given to them under para. 8 and the Scheme framed thereunder. Representation was also that even if any land was still found to be in excess and thus could not permanently be settled upon them even on the basis of the IInd Supplementary M.R.V., dated 9th July, 1974 (Annexure X-6), the same should be considered to have been surrendered and repurchased by Fazli family in pursuance of M.L.R.-89 and the price already paid by the Fazli family for all the surrendered land be adjusted towards the payment of the price of such lands. This request of the petitioners was not acceded to by the Deputy Commissioner and Additional S.E. (Land) Mirpurkhas in view of Memorandum No,KB- IV/4/16/76 of July, 1976 issued with the authority of the Board of Revenue Sind.
' According to the learned counsel, the petitioners also approached' the Member Board of Revenue/the respondent-No,1 as successor to the Chief Settlement Commissioner to give them the relief on the basis of their revised M.R.V., dated 9-7-1974 (Annexure X-6), whereupon by letter dated 24-11-1976 the Settlement Commissioner, Sind, called for report from the Deputy Commissioner, Mirpurkhas particularly on the point why the clearance certificate had not been issued. A copy of the letter was also endorsed to Mst. Saeeda Fatima, the Petitioner No,3.
' In the meantime disputed had arisen between the petitioners and the legal representatives of Mr.Wadood Fazli (deceased) in respect of transfer of surrendered lands in the exclusive name of the latter. These disputes ultimately became the subject-matter of Revision Application No,1307 HYC (LB)/73-74 which was decided on 23rd April, 1978 by the Commissioner of Hyderabad, who with the observations made to the effect that the revision petition before him had been made under section 164 of the Land Revenue Act, 1967 under which there are ample powers with the revenue authorities to interfere in mutation affected if fraud is found to have been committed remanded the case to the Deputy Commissioner, Tharparkar with the following directions:- "In the circumstances, 1 am remanding this case to the Deputy Commissioner, Tharparkar to go into the specific issues involved and take further action in the light of Land Revenue Act in respect of the mutation in the instant case."
' As regards the question raised before him about the settlement of land on the basis of the Supplementary M.R.Vs. It was held:- "The other point regarding acceptance of enhanced claim of the petitioner in the light of M.R.V. issued by the Central Record Office, I think the orders are very clear as narrated by the Rehabilitation of Mukhtiarkar. According to the instructions issued by the Board of Revenue Sind in consultation with the Law Department vide their Memo No,KB IV, dated July, 1976, the evacuee surrendered land cannot be allotted in satisfaction of revised entitlement certificates under Rehabilitation Settlement Scheme. The allotments of evacuee lands were stopped in July, 1973 and on 30-6-1974 all Evacuee and Rehabilitation laws were repealed and consequently the balance evacuee lands were transferred to the Provincial Government for disposal according to the scheme prepared by the Provincial Government. Thus, neither the surrendered lands nor the Evacuee balance lands are subject to allotment in satisfaction of claims. At this stage the appellants can, therefore get cash compensation under the Rules in lieu of their enhanced entitlement, I am, therefore, not going into this question."
7. The Petitioner No,3 then moved an application, dated 30th September, 1978 before the Member Board of Revenue, Sind for early decision of her case pending before the Deputy Commissioner, Tharparkar. In reply to the said application, on behalf of the Board of Revenue, Sind, Mst.Fatima Fazli was informed that the Deputy Commis sioner had already decided the dispute about mutation of evacuee surrendered land in her favour by order passed on 7-11-1978. As regards settlement of land on the basis of Supplementary revised entitlement certificate she was informed:- ' that the entire evacuee laws have been repealed with effect from 1-7-1974 and the available land has been transferred to Provincial Government by the Federal Government on payment of price.
Hence your supplementary revised entitlement certificates, which were issued after repeal of laws, cannot be settled by this office.
' However, you may approach the Settlement Commissioner Sind at Karachi in this behalf, if you so choose."
8. The Petitioner No,3 Mst. Fatima Fazli then moved Shariat Petition No,30 of 1979 under Article 203-B of the Constitution. The said Petition (alongwith another Shariat Petition No,32 of 1979) was dismissed as not maintainable under Article 203-B of the Constitution.
9. In the circumstances stated above, this present Petition has been filed under 199 of the Constitution of 1973, wherein the prayers reproduced above have been made.
10. Mr.Akhtar Mahmood, the learned counsel for the Petitioners raised the following contentions in support of the Petition:- "(i) That the surrender of the excess land made by the petitioner the members of Fazli family was not a valid surrender for the reasons that the same was based upon a wrong M.R.V. issued to them on 25th September, 1961 for 4150 P.I. Us. Whereas in accordance with the scale of entitlement prescribed by para. 5 of M.L.R.-89 they were entitled to issuance of entitlement certi ficate (M.R.V.) for 18595 P.I.Us., which certificate in fact was subsequently issued to them on 9th July, 1974 as per Annexure X-6 to the Petition.
(ii) That the case of the Petitioners was a pending case within the meaning of Evacuee Property and Displaced Persons Lands (Repeal) Act No,XIV of 1975 PLD 1975 C S 87, and, therefore, their case was liable to be disposed of as if the D.P.Comp. (Land Settlement) Act, 1958 had not been repealed."
11. As regards the first contention raised by the learned counsel, it would be observed that though the M.R.V., dated 25-9-1961 for 4150 P.I.Us issued to the Fazli family/the petitioners, was found to have been wrongly issued for lesser P.I.Us than to what they were entitled in accordance with para. 5 of the M.L.R.-89 yet the fact remained that the petitioners did not resort to any remedy so as to get any stay or to avoid the surrender of the excess land till the decision of their case for rectification of the M.R.V., dated 25-9-1961 was decided. On the contrary in para. 6 of the present Petition, the petitioners admitted that,:- "In the meantime, like law-abiding citizens, they complied with the provisions of M.L.R.-89 on the face value of the M.R.V. issued to them, exercised the choice of retention of the entire garden land in Deh 109 and some other land in Deh 108 and after surrender of their 51 acres of land in Deh 108 and entire holdings in Deh Reti and Jamesabad, exercised the choice of repurchase of these lands and started paying installments for the same."
' Significant fact to mention here is that the petitioners filed Writ Petition No,437-R of 1965 wherein they prayed for direction for determination of the entitlement of each claimant/petitioner separately according to para. 5 of M.L.R.-89, and also prayed that:- "....the land to which the Petitioners may as such become entitled be adjusted from the land in possession of the petitioners since given according to the previous entitlement and out of which the surplus surrendered was purchased on instilment basis and hence is in the possession of the petitioners presently."
' The above Petition was disposed of on technical grounds, against which appeal was filed but the appellants (including the present petitioners) did not pursue the same which was allowed to be dismissed for default on 21-11-1975. The explanation given for such a conduct on the part of the petitioner/claimants was that in the meantime the Central Government had issued notification, dated 26th/27th March, 1971, whereby they became entitled to get the M.R.V., dated 25-9-1961 rectified from the department and that the Ilnd Supplementary M.R.V. in fact was issued in which correct P.I.Us to which the Petitioners (the Fazli family) were entitled, were shown. The fact, however, remained that the petitioners made no effect to get their case remanded from the High Court for settlement of excess surrendered land against their Supplementary M.R.V. They chose to remain content with getting Supplementary M.R.V. for enhanced P.I.us and did not care to get appropriate relief in the Letters Patent Appeal even in terms of the relief claimed in the Writ Petition about adjustment of their entitlement against the surrendered land.
There is no denial of the fact that the surrender of the excess land was in consequence of the wrong M.R.V. issued to the petitioners and was in compliance of the provisions of para. 8 of the M.L.R.-89 which vide para 10 provided for penalty for contravention and failure of any person to comply with the provisions of para.
8. It is however, clear that the surrender of land was not only voluntary but the petitioners went a step further and opted to purchase the excess land under the scheme notified for disposal of land surrendered by the claimants under para 8 of M.L.R.-89. It may be mentioned here that under clause (4) of the said scheme the first option for the purchase of excess land was given to the person who had surrendered the land which option was to be exercised within the specified period.
Thus, on surrender of land and option exercised by the petitioners to purchase the same, a contract came into existence between the parties. The grant thus made would be governed by the Revenue laws as the surrendered land vested in the Government and could not revert to the compensation pool constituted under section 5 of the Displaced Persons (Land Settlement) Act, 1958 and was liable to be disposed of by the Government according to the scheme framed for the purpose.
The Petitioners thus having taken no step to prevent the surrender of excess land and in fact submitted by their own conduct to such a course by opting to purchase the same and even paid some of the installments now cannot with any justification urge that the excess land was wrongly surrendered by them. The subsequent issuance of Supplementary M.R.Vs. on 2nd July, 1974 and 9th July, 1974, would entitle the petitioners to get cash compensation according to rules/schemes but cannot have the effect of reverting the excess surrendered land to the compensation pool, or divesting the Government of the said land in view of para. 9 of M.L.R.-89, which provides that:- "The land surrendered under paragraph 8 shall not revert to the compensation pool constituted under section 5 of the Displaced Persons (Land Settlement) Act, 1958 (XLVII of 1958) but shall vest, and shall be deemed always to have vested (free of encumbrances) in the Government of West Pakistan, and may be disposed of in such manner as the Government thinks fit."
12. As regards the second contention raised on behalf of the Peti tioners that their case shall be deemed to have been pending within the meaning of Evacuee Property and Displaced Persons Law (Repeal) Act No, XIV of 1975, the learned counsel contended that though the application for settlement of the excess land was made after 9th July, 1974, on the issuance of lInd Supplementary M.R.V., the case shall be deemed to be pending within the meaning of the aforesaid Ordinance No, XV of 1974, which was promulgated on 30-9-1974. The learned counsel submitted that the said Ordinance was given retrospective effect from first day of July, 1974 and was subsequently replaced by the Evacuee Property and Displaced Persons Laws (Repeal) Act No, XIV of 1975, which was published on 28-1-1975 in the official Gazette. According to the learned counsel the application filed by the petitioners for settle ment of the excess surrendered land on the basis of the revised supplementary M.R.V., dated 9th July, 1974, was made before 30th September, 1974 i.e, much before the Ordinance of 1974 was published and thus the said application though filed after 1st July, 1974 shall be deemed to be a pending case. The learned counsel contended that under subsection (2) of section 2 of the Ordinance XV of 1974 and section 2(2) of Act No, XIV of 1975 (which replaced the first mentioned Ordinance), this being a pending case, was liable to be disposed of by the notified officer in accordance with the provisions of the repealed Act and regulations.
' I however, find that these arguments of the learned counsel for the petitioners cannot be accepted, for the following two reasons:
(1) Firstly, the surrendered land under para 9 of M.L.R. 89 vests in and shall be deemed always to have vested in the Government free of encumbrances and was liable to be disposed by the Provincial Government in accordance with scheme for disposal of land surrendered under M.L.R.-89 as amended by M.L.R.-91, promulgated on 28-12-1961. The said scheme provides the manner in which the surrendered land is allotted and transferred. Nothing was brought to our notice by the learned counsel whereby the land thus vested in the Government could revert to the compensation pool or otherwise be transferred to the petitioners except in accordance with the said scheme.
(ii) Secondly, the provisions of Ordinance No, XV of 1974 as well as those of the Act No,XIV of 1975 were given retrospective effect. The said Ordinance vide section 1(2) provided:- "It shall come into force at once and shall be deemed to have taken effect on first day of July, 1974."
' Similarly the above mentioned Act of 1975 also provided:- "Section 1(2):--It shall come into force at once and shall be deemed to have taken effect on the first day of July, 1974."
' It would also be relevant now to refer here to section 2(2) which provides that upon the repeal of the Acts and regulations specified in section 2(1) all proceedings which "immediately before such repeal" may be pending before the authorities appointed thereunder shall stand transferred for final disposal of the notified officeRs, It cannot thus be disputed that the Displaced Persons (Land Settlement) Act of 1958 (and other laws mentioned in subsection (2) of section 2)stood repealed from first day of July, 1974 and only those cases which 'immediately before such repeal' pending before the authorities appointed under the said Act, were to be transferred for final disposal of the notified officeRs, No application or proceedings for the settlement of the petitioners' claim is shown to have been pending before any officer or authority 'immediately before the repeal' of the said laws.
' Both these statutes (the Ordinance No,XV of 1974 published in the official Gazette, on 30th September, 1974 and the Act No,XIV of 1975 repealing the above-mentioned Ordinance notified on 28-1-1975), expressly provided for their coming into force at once and that "these shall be deemed to have taken effect on the first day of July, 1974". Accordingly, the following principle laid down in case of State v. Bashir Ahmed PLD 1976 SC 390 would be attracted to the present case as "....It was open to the Legislature to express the date of the commencement of the Act or to postpone the operation of a part of the Act to a later date. In such an event it is the duty of the Court to give effect to the language of the Act otherwise it would be a negation of the intention of the Legislature which is not permissible as it is against the norms of interpretation."
' It was further held:- "Section 5 of the General Clauses Act, 1897, lays down the rule for the commencement of the Central Act when a date is not expressed in the Act itself as to its commencement. Subsection (3) of section 5 provides an exception by the use of the expression 'unless the contrary is expressed' which shows that in the event of a date having been expressed it will be from that date that the Act will commence to operate."
' We may also refer to the case of Ahmad Younus v. Muhammad Younus Khan and others 1981 SCMR 899 wherein the Honorable Supreme Court refused to grant leave to appeal against the judgment of the learned Single Judge of the High Court dismissing writ Petition whereby the learned Judge agreed with the view of the Additional Settlement Commissioner that there was no material on the file to substantiate that Ahmed had applied for transfer of an industrial concern and furthermore he had not produced any evidence that the case was pending on 1-7-1974 as required under section 2 of the Evacuee Property and Displaced Persons Laws (Repeal Ordinance, 1974 (New Act No,XIV of 1975). The Honorable Supreme Court while dismissing the petition observed:- "We heard Mr.A.H.Najafi on behalf of the Petitioner but he was not able to show that proceedings the Settlement .authorities regarding transfer of the disputed land were pending before the target date as mentioned in the Ordinance 1974 i.e, 1-7-1974."
[The underline is by me].
13. Mr.Akhtar Mahmood, the learned Advocate lastly contended that application for grant of the surrendered land was made by the petitioners before 30-9-1974 (i.e, the date on which the Ordinance No,XV of 1974 was published in the official Gazette) and thus the Petitioners cannot, by giving retrospective effect to the said Ordinance, 1974, be deprived of their vested right to get the land settled against their Supplementary M.R.V. In view of the express language used in the relevant laws and in the light of the principles in the case of (i) State v. Bashir Ahmed and (ii)
Ahmed Younus v. Muhammad Younus Khan and others, by the Hon'ble Supreme Court referred to above, I, however, find that this contention cannot be accepted as it is the duty of the Court to give effect to the language expressed in the Ordinance of 1974 and the Act of 1975 as to their commencement.
14. The Petitioners even otherwise are not left without any remedy. They would be entitled to cash compensation, as observed by the Commissioner in his order, dated 23-4-1978. As regards the surrendered land, the petitioners have opted to purchase the same and retain it on payment of the instilments. If permissible they may apply. for adjustment of the instilments against the cash compensation payable to them for unsettled units.
15. The upshot of the above discussion is that there is no merit in this Petition which is accordingly dismissed. Since the respondents have not contested the case, there shall be no order as to costs.
Naimuddin, J.--I agree.