1. ' SHAFIUR RAHMAN, J.-Leave to appeal was granted to a large number of appellants who were all tiller's of tae land, in seven separate petitions, raising identical questions of law arising out of the judgments of the Lahore High Court whereby it was held that the State land on being surrendered by the grantees thereof under the various Land Reforms Regulations particularly Land Reforms Regulation 1959 was not available for disposal by sale in favour of tenants in cultivating possession thereof or for sale under Sale Scheme premulgated on the 4th of January, 1964. The background in which such a common question of law has arisen is described in detail hereunder identifying it with each appeal or a set of Appeals separately.
2. ' I. Civil Appeal No, 44 of 1972-Talib Din and 101 others v. The Chief Land Commissioner and others ' State land measuring about 7,187 acres situate in Tehsil Khanewal district Multan was leased out to the British Cotton Growing Association Limited (hereinafter referred to as the B. C. G. A.) in the year 1929 by the then Government of the Punjab for a period of 20 years.. The B. C. G. A. Had been given option. For two more renewals. The appellants and their predecessor-in-interest claimed to be the cultivating tenants of the land under the B. C. G. A.
3. ' On the promulgation of West Pakistan Land Reforms Regulation, 1959 (Martial Law Regulation No, 64) an area of 4,516 Acres including the land in possession of the appellants was surrendered by the B. C. G. A. And resumed by the Government under paragraph 16 of the Land Reforms Regulation.
4. 1959. The appellants as tenants of the resumed land sought its sale in their favour under paragraph 19 of the Land Reforms Regulation, 1959. They submitted the required L. C. Forms and undertook to abide by all the conditions stipulated therein.
5. ' The Land Commission on 6-2-1960 decided that the land thus resumed I from the B. C. G. A. Should be sold to the Agriculture Department, Government of West Pakistan, at the rate of Rs, 8 per P. I. Unit for the maintenance of seed farms. Ultimately on 13th of February, 1962 the entire resumed land was transferred by the Land Commissioner to the Agricultural Development Corporation which had, in the meantime, come into existence and was entrdsted with the setting up of seed farms in the Province.
6. ' On the refusal of the Land Commission to sell the resumed land in favour of the tenants some of them instituted a Constitutional Petition (No, 448 of 1960) in the High Court of West Pakistan at Lahore. A report was called for from the Land Commission and it was ultimately dismissed on 20- 10-1960 with the following observations- "We have seen the report. It shows that the land was not owned by B. C. G. A. This being Crown land has reverted to the Government. The petitioners cannot claim a transfer of Government land under M. L. Regulation 64. Dismissed."
7. ' On. The 18th of September, 1963 a policy letter was issued by the Land Commission and it was followed by a formal scheme of sale of State land and Jagir land, in favour of the sitting tenants.
8. The appellants sought the benefit of it but their applications were rejected by the Deputy Land Commissioner, the Land Commissioner and the Chief Land Commissioner. So aggrieved they filed Constitutional Petition No, 1394 of 1965 which was dismissed by a Division Bench of the Lahore High Court on 3-5-1971. The appellants were granted leave to appeal to examine whether the view taken that State land resumed from the grantees was not available for sale eithe under the provisions of the Land Reforms Regulation, 1959 or under the scheme framed thereunder was correct.
2. Civil Appeal No, 13 of 1975-Khuda Box and 73 others v. The Chief Land Commissioner arising out W. P. 1532/1965 disposed of by the High Court by consolidated judgment, dated 3-5-1971 The 74 appellants, like the appellants of the other appeal (C. A. 44/72), were tenants of land resumed from B. C. G. A, and their effort to purchase, the resumed land on the ground of being landless tenants met with no success at the hand of the Land Commission. They filed a constitutional petition which too was dismissed by a consolidated judgment which is the subject- matter of Civil Appeal No, 41 of 1972.
3. Civil Appeal No, 241179-Allah Ditta and 135 others v. The Chief Land Commissioner.
9. ' The appellants in this appeal too claim to be the tenants of the land surrendered by B.C.G.A. On the promulgation of Land Reforms Regulation, 1959 and Land Reforms Regulation, 1972. Their claim to purchase the resumed land or a part of it met with no success before the Land Commission authorities. They filed a constitutional petition but in view of the earlier decision by a Division Bench (subject-matter of C. A. 44/72) their constitutional petition was dismissed with costs. Leave to appeal was granted as an identical question was arising in Civil Appeal No, 44/72.
4. Civil Appeals Nos, 84 and 86 of 1978-Falak Sher and others v. Ch. Muhammad Hanif and others Makhdoom Sajjad Hussain was granted land measuring 204 Acres 7 hanals 13 Marlas in Chak 6/Faiz, District Multan under the bewell Scheme by the Punjab Government. On promulgation of Land Reforms Regulation, 1959 he surrendered a part of this land which was under the tenancy of the twenty-five appellants in these two appeals before us. On resumption the land was leased out to various persons and even to some of the appellants and ultimately allowed by way of exchange to respondent No, 1 Ch. Hata. The appellants claimed the land under sale scheme being its tenants.
10. They were denied this right by the subordinate land commission authorities whereupon they ultimately took the matter to the Federal 'Lead Commission. The Chairman Federal Land Commission in suo motu proceedings under para. 29 of Law Reforms Regulation, 1972 by an order dated 9th of December, 1976 held that the State land resumed from the grantee was available under the Land Reforims Regulation and had to be disposed of in terms of the decision of the Commission contained in para. 177 of the West Pakistan Land Reforms Manual, Volume that is it had to be sold to the tillers of the land on the price fixed under the Scheme. Ch. Muhammad Hanif, respondent No, 1, feeling aggrieved by this decision of the Chairman Federal Land Commission filed a constitutional petition (W. P. No, 64 of 1977) against the appellants in these two appeals. The learned Judges in the High Court accepted the writ petition holding as had done earlier that the State land resumed from the grantees was not available for sale to the tenants and as such the appellants could not be given the right which was conferred on 'them by the Chairman Federal Land Commission by the impugned order. Leave to appeal was granted as similar question was coming up for examination as was involved in the three civil appeals relating to the B. C. G. A.
5. < i> Civil Appeal No, 85 of 1978-Ahmad Bakhsh and 19 others v. Syed Ibrar Hussain Shah, etc. Pir Mohyuddin Lal Badshah was the grantee of 1,386 Acres 6 Kanals and 17 Marlas of Government land in Chak No, 74-B/15-4 Multan. The lease period was from Kharif 1953 to Rabi 1973. On the promulgation of Land Reforms Regulation, 1959 the grantee surrendered area measuring 143 Acres 1 Kanal and 8 Marlas out of the land so granted to him. The appellants claimed to be the tenants of the land. On resumption of this area it was first given to Raja Nadir Khan from whom it was subsequently resumed. The petitioners thereafter moved the Land Commission Authorities for purchase of this land under the sale scheme. They were not given that right. Instead it was leased out by the Government to Syed Ibrar Hussain Shah, respondent No, L The appellants thereafter instituted a civil suit in which an interim order in favour of the appellant was passed but subsequently when they moved the Chairman Federal Land Commission he assumed suo mow jurisdiction in the matter and by order, dated 16th of July, 1976 held that the land having been resumed from the grantee vested in the Provincial Government and was available for sale to the cultivating tenants under the sale scheme. He recognised the right of the appellants to obtain the land. Aggrieved by this order of Federal Land Commission Syed Ibrar Hussain Shah the lessee under the Government filed a constitutional Petition (No, 221 of 1976). It was disposed of by the same learned Judge in the High Court who had written the judgment of the Division Bench in the main appeal of Talib and 101 others (C. A. 44 of 1972). He upheld the right of the Government to lease it out to the writ petitioner Syed Ibrar Hussain Shah and negatived the right of the cultivating tenant to obtain it on sale from the Land Commission, The order of the Chairman Land Commission was quashed, for the reasons already noted.
6. Civil Appeal No, 389 of 1980-Allah Bakhsh and others v. Chief Land Commissioner and another ' Government land had been granted to Bashir Ahmad and Ghulam Sher in Chak No, 63/10-M, Tehsil Khanewal, District Multan on the livestock breeding grant conditions. The grantees surrendered the land in question under the Land Reforms Regulation of 1972. The appellants claimed to be in cultivating possession of the land and claimed from the Land Commission authorities its sale under para. 18 of Land Reforms Regulation of 1972. At all the levels the Land Commission authorities refused the sale to them whereupon they instituted a constitutional petition challenging such refusal by the Land Commission authorities. The constitutional petition was dismissed in limine by a very short order on 6-10-1980 following the decision of the Division Bench in .Shamir v. Chief Land Commissioner , now the subject-matter of Civil Appeal No, 44 of 1972. Leave to appeal was granted as the same question had already been raised in a number of other appeals. The primacy of the Land Reforms Regulations and of the Land Commissions established thereunder is reflected in the express provisions of the law. The limitations, prohibitions and the ceiling on land holding was provided for in para. 8 of Land Reforms Regulation, 1959 reproduced hereunder :- "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 unirrigated1 land, and any reference in this regulation to an acre of irrigated land shall be construed accordingly."
11. Person was defined in clause 8 of para. 2 in following words :- "Person includes a displaced person as defined in clause (2) of section 2 of the Displaced Persons (Law Settlement) Act, 1958 (XLVII of 1958) but does not intrude a local authority or a body incorporated by a Central or Provincial Act."
12. The primacy of the Land Commission and its decisions was provided for in sub-paragraph (5) of para. 4 reproduced hereunder :- "Where any matter is not provided for in this Regulation, or any difficulty arises in giving effect to the purposes of this Regulation, the Commission may, by order notified in the official gazette, make such provision in respect thereof as it thinks fit, and such order shall be deemed to form part of this Regulation and have effect accordingly."
13. Sub-paragraph (6) of the same para. Provided as hereunder :- "Where any dispute arises in carrying into effect the provisions of this Regulation, such dispute shall be referred to the Commissions whose decision thereon shall be final."
14. ' Finally para. 3 of the Regulation, gave its provisions a pre-eminently overriding effect. It reads as follows :- "The provisions of the Regulation, and any rule or order made thereunder, shall have effect notwithstanding anything to the contrary in any other law, or in any order or decree of Court or other authority, or in any rule or custom or usage, or in any contract, instrument, deed or other documents."
15. ' It will be noticed that the definition of person given in this regulation is materially different from the definition of person given in Article 260 of B the Constitution and clause (39) section 3 of General Clauses Act. The impugned judgment shows that it was at no stage contended that the Government. Federal or Provincial was covered by the definition of person given in this Regulation.
16. None has contended so even before us. It is clear, therefore, that the land holding of the Federal or Provincial Governments was not subject to the regulatory controls, limitations or the prohibitions contained in this Regulation. It fell outside its purview.
17. ' As ceilings fixed and the limitations and prohibitions imposed applied equally to proprietary interest as well as possessory interest in land the Land Commission on 5-8-1960 after noting down the problems took the following decisions (Reproduced from Vol. 1 of Government publication-Land Reforms in West Pakistan 1960 Edition p. 38, also reproduced at page 362 of the same volume).
18. "The Commission examined these questions at length and took the following decisions :-
(i) (a) A lessee, whether of Government land or otherwise, who did not hold any land its owner, could retain such area as was permissible under paragraph 8 of the Regulation. He could not, however claim, the benents under paragrapns 9 and 11 of the Regulation except under paragraph 9
(d) thereof.
(d) A lessee, who also 'owns land, can get the benefits under paragraphs 9 and 11 of the Regulation in respect of the area held by him then owner and .Under paragraph 9 (d) of Regulation in respect of the area held by him on lease.
(i) If the leased area surrendered by a lessee, was owned by a person, who had not got more than 500 Acres of irrigated land or 1,000 Acres of unirrigted land, it should revert to him. If that area was owned by a person, who held more than the permissible area, then it would revert to him unless he surrendered it while retaining the permissible limit of his holding.
(iii) (a) If the leased area surrendered by a person was State land, it would revert to Government and the cultivating tenants would become Government tenants and continue in occupation under such terns and conditions as may be prescribed by Government. They would not, however, be entitled to purchase land under the Regulation ; and
(b) (1) in case of leases made by registered deed or the leases the terms of which are recorded in the revenue records the lessor should get the land only if he pays the outstanding lease-money to the lessee. If he fails to do so then the land should not go to the lessor but should remain with the Commission for the unexpired period of the lease. The area in question may be leased out by the Deputy Land Commissioner for the unexpired period of the lease and the money recovered from time to time should be given to the lessee. If there are any conditions in respect of compensation for improvements those should also be determined by the Deputy Land Commissioner. The order of the Deputy Land Commissioner will be subject to appeal and revision.
(2) In case of oral leases the lessee should apply to the Deputy Land Commissioner foi the determination of the money which is due to him on account of advance paid or for compensation for improvements. The Deputy Land Commissioner, after examining such evidence as may be produced, may decide the question. If the lessor pays the amount so determined then the lease should be terminated and the lessor put in possession of the land. If he fails to do so then the leased area should be leased out by the Deputy Land Commissioner for the unexpired period of the lease and the amount thus recovered should be paid to the lessee. In both cases 5% of the lease money determined by the Deputy Land Commissioner should be realised as administration charges.
19. ' The Deputy Land Commissioners have been asked to maintain accounts in such cases in the Prescribed Form (Appendix XXX).
(iv) If the proprietary area left with a person after making gift was less than the area equivalent to 36000 produce index units, he could retain such area out of the land held by him on lease as would make up a total equal to 36000 produce index units."
20. ' Another decision of the Commission is at page 135 (ibid) para. 177 in following words :- "177. State agricultural land resumed from lessees, grantees, allottees and purchasers on instalment basing shall be disposed by the Chief Land Commissioner in accordance with the principles laid down by the Commission. The Commission also decided that :-
(i) In respect of terms and conditions for the disposal of this land the Board of Revenue and the Revenue Department shall be consulted.
(ii) The price of the land shall be credited to the Government after deducting five per cent on account of administration charges.
(iii) State land resumed may be given to tenants who have occupied the same for a period of three years at reasonable market price to be worked out for each area. If the tenant refuses to purchase this land at the price fixed by the Chief Land Commissioner or the land is held by a tenant who has .Not been holding it for the last three years or the land is untenanted then the land should be sold by public auction in such lots as may be decided by the Chief Land Commissioner.
21. (iv). In case the Chief Land Commissioner considers it necessary to lease out any such areas then the leases should be by tenders. In some districts landowners have surrendered State agricultural land sold to them on instalment basis but the instalments had not been paid in full before the surrender of the land. The following questions arose in this connection.
(a) Whether in the event of such landlowners giving up the area for which they were paying the price by - instalments, they would be entitled to the refund of the instalments paid by them ? If not, whether the transaction should be foreclosed and the purchaser may get compensation of the area which becomes proprietary ?
(b) Whether the outstanding instalments would be considered a liability and would be transferred to the ceiling areas or the compensation amount as the case may be ?
(c) Whether the areas, so surrendered, would revert to Government or would be taken over by the Commission for the purpose of settlement of tenants, or the implementation of Land Reforms Scheme ?
22. ' The Commission decided that :-
(a) a declarant owner would not be entitled to the refund of the instalments paid by him in respect of the resumed State land the price of which he was paying in instalments ;
(b) in case of State land surrendered by a declarant owner he should be. Entitled to compensation of so much area of the land which corresponds to the price paid by him. The remaining area should be resumed from him without compensation; and
(c) the resumed State land should be disposed of by the Chief Land Commissioner in accordance with the principles laid down by the Commissioner."
23. ' The policy decision was also reflected in the Sale Scheme (Appendix XX ibid at p. 405) enforced on 22-10-1959 in which land was defined as land, other than State land but including Jagir land resumed under Martial Law Regulation 64. It was on 4-1-1964 that State land sale scheme (page 255 Vol. III of Land Reforms in West Pakistan) was notified. It defined land to mean "State land and Jagir land for which no compensation is payable resumed under West Pakistan Law Reforms Regulation, 1959".
24. ' The Government and the Land Commission agreed on 6-2-1960 that the land resumed from B.C.G.A. Should be sold to the Agriculture Department Government of West Pakistan at the rate of 8 per P. I. Units. The entire land so resumed from P.C.G;A. Was transferred to the Agriculture Development Corporation. This decision was implemented on 13-2-1962.
25. The ownership rights of the Provincial Government in land remained untouched and unaffected by the Regulation. The authorities established thereunder could not exercise any jurisdiction or authority over such proprietary interest of the Goverment. The tenants, actual cultivators in possession, could mot claim from the Land Commission transfer to them of any share of such proprietary interest belonging to the Government. The possessory interest which alone could be dealt with by the Commission in such cases was never the subject-matter of controversy. In determining its own jurisdiction the Commission correctly indicated its limits in its decision taken on 4-10-1960. The subsequent "enlargement of such jurisdiction so as to appropriate to itself a dispoitive power over such property in consultation with B.
0. R. And Revenue Department was clearly beyond its jurisdiction, outside the limits of M. L. R.
64. In the case of Hamida Begum the following raw was laid down :- "The correct position in law thus appears to be that under paragraphs 3, 4 and 27 of the Regulation; the ordinary Courts are barred from' questioning the validity of any provisions of the Regulation as well as any rule or order made thereunder, that all disputes arising in connection with the implementation of the provisions of this Regulation are to be finally decided by the Land Commission, and no Court or authority has jurisdiction in respect of any matter which the Commission or an officer acting under the authority of the Commission is empowered to determine. If any matter or dispute falls outside the ambit of the Regulation, or raises a question as to the jurisdiction of the Land Commission itself, then the jurisdiction of the civil Courts to deal with such matter or dispute is not barred. The Land Commission is not the final Judge of facts and circumstances constituting the foundation of its jurisdiction, although it has necessarily to decide such question for the purpose of administering the Regulation. Its decisions on such jurisdictional facts are open to challenge in the ordinary Courts, and in any case there does not appear to be any provision in the Regulation empowering the Land Commission to give binding decisions on questions of title and personal status like legitimacy and inheritance."
26. The transfer to Agriculture Development Corporation completed in 1962 was protected as it had the sanction/approval of the Provincial Government. The claim of the cultivating tenants under the sale scheme, or the Regulation itself from the Land Commission was untenable in law. The decision in writ petitions filed by B.C.G.A. Tenants was in conformity with the established legal position.2 ' On the statutory plane the case of Jagirs was different. The interest in Jagir was, subject to certain reservations, to revert to Government (paragraph 21(1)). Where the Jagir was in the form of a grant of land, the grantee was treated as owner, subject to the same limitations of ceiling etc. And excess land was to revert to Government (para. 21(2)) and was to be disposed of by the Commission "in the maw er provided by or under this Regulation". Under para. 19 only the land resumed under Part IV "shall in the first instance be offered for sale" to the tenants who were in cultivating possession of it. In respect of resumed Jagir land the Commission had been expressly conferred a power of its disposal in accordance with provisions made in or under the Regulation. Such was not the case in respect of Government owned lands which reverted to it from the lessees.
27. ' So far as Land Reforms Regulation, 1972 is concerned Punjab Ordinance XV of 1972 (Lard) Reforms (Punjab Amendment) Ordinance, 1972 was notified on 8th August, 1972. It came into force at once and was deemed to have taken effect on and from 11th March, 1972, the date that Land Reforms Regulation, 1972 came into force. Section 6 of this Amending Ordinance introduced sub-para. (3) in para. 13 and is reproduced hereunder "Where any person is in possession of land in excess of the area permissible for retention under Part III so much of such excess land as is in his possession as a lessee or mortgagee shall not vest in Government but shall subject to the ether provisions of this Regulalation revert to the lessor or mortgagor, as the case may be."
28. This amending law whose validity and legal efficacy was tested and recognised by this Court in.
29. Mehreen Zaibun Nisa v. Land Commissianer Multan and others leaves no room for claim under sale scheme or other wise, by cultivating tenants under the grantees from whom the land reverted to the grantor.
30. The result, therefore, is that all these appeals are without merit and are dismissed leaving the parties to bear their own costs. PLD 1973 Lab. 264 PLD 1975 SC 624 PLD 1975 SC 397