The petitioner has filed this petition under Article 199 of the Constitution of Pakistan whereby he seeks to challenge the orders dated 14-3-1968 and 29-6-1974 passed by the Additional Settlement Commissioner and Settlement Commissioner, Hyderabad, respectively.
2. The petitioner was allotted 531 acres equal to 19182 P.I. Units of agricultural lands in the Dehs, Dad Mangeria and Lurh in Tehsil Tando Allahyar, District Hyderabad on 12-9-1959 and 2-10-1959, respectively. On promulgation of the M.L.R. 84 as reconstituted by MLR 89/91 the petitioner was shown entitled to 3594 P.I. Units as per M.R-V. The balance area of land was, therefore, surrendered by the petitioner on 25-10-1961. He, however, purchased 416.22 acres as per sanction dated 2-4-1961 accorded by the Deputy Commissioner and D.S.C.
(Land), Hyderabad. It was alleged by the petitioner that some of the lands allotted to the petitioner were comprised of Banjar-e-Jadid and Banjar-e-Qadeem and lift lands as shown in the chart annexed to the petition, which should have been calculated in terms of the Slip No.2-P-1 dated 15- 8-1957 but contrary to the said slip all the land was calculated at the flow rate namely 40 P.I. Units per acre. The petitioner was also not given 10% rebate on Chahi lands. The lift land was also illegally calculated at the rate of flow land.
3. The petitioner, therefore, made a number of applications to the Settlement Authorities for calculation of the P.I. Units according to law as in force at the time of allotment of land to him but to no avail. Ultimately the matter was heard in Revision by the Settlement Commissioner (Lands) Sind who, agreeing with the order dated 14-3-1968 of the Deputy Commissioner and Additional Settlement Commissioner (Land), dismissed the Revision Application by his order dated 29-6-1974 which has been challenged in this petition.
4. Learned counsel for the petitioner has raised three-fold conten- tions, namely, (1) that the law applicable in this case will be the law as it stood in 1959 when the land was originally allotted to the petitioner,
(2) the petitioner is entitled to 10% concession for the Chahi land and
(3) he is also entitled to a concession in the lift land as it cannot be evaluated at the rate of 40 P.I.
Units per acre which is applicable to the flow land only.
5. To deal with the third contention first, the learned counsel for the petitioner referred to a pamphlet entitled as "Produce Indices for the Districts in the Province of Sind" which is an extract copy from the Booklet of P.I. Units in various districts of West Pakistan, published by the Government of West Pakistan in 1959. At page 2 of the said Indices the rate in Tando Allahyar for flow land is shown as 40 P.I.
Units per acre and for lift land the rate is 26 P.I. Units per acre whereas in the case of combined flow and lift lands it is 34 P.I. Units per acre. After some arguments he, however, did not press this contention.
6. Regarding the first contention learned counsel for the petitioner referred to para. (d) of the footnote appearing at page 11 of the said pamphlet which reads as under:- "(d) Banjar Jadid, Banjar Qadim and Ghair Mumkin soil wherever they exist in all the districts of Hyderabad and Khairpur Divisions should be evaluated at one-fourth, one-eighth and one- sixteenth of flow soil of the Taluka concerned, respectively."
' On the basis of the said footnote, he submitted that according to Correction Slip No.2 P-1 dated 15- 8-1957 the portion of the land allotted to him which is Banjar-e-Jadid should have been evaluated at the rate of 1/4th of the flow land and the land which is Banjar-e-Qadeem at the rate of 1/8th of the flow land. He invited my attention to the Chart annexed to the petition which shows Banjar-e- Jadid, Banjar-e-Qadeem, lift and flow lands at the time of allotment in 1959 with their respective acreage.
7. The learned counsel for the petitioner referring to a judgment of this Court reported as Mst. Fida Zuhra and others v. Deputy Commis sioner and Deputy Settlement Commissioner (Land) Sukkur PLD 1966 Kar. 79 relied on the following observations: "On the plain reading of the above-mentioned footnote it is perfectly clear that the Chief Settlement Commissioner under it has given clear instructions to the Department that whatever the above-mentioned class of soil is found to exist in the Sind Region it should be evaluated on the scale indicated in it. This interpretation is fully borne out by the words "wherever they exist" in the footnote. Had there been no formula available to determine such soil, the contention of the Department that it was issued on the mistaken assumption that such entries existed in the record- of-rights and special Jamabandis of Sind area, might have some force. But in this connection Mr. S.M. Raza, has referred us to the Circular No.D R C-9139, dated 5th September, 1959, issued by the Deputy Rehabilitation Commis sioner Sukkur (Annexure A) which is to the following effect: ' It is observed that most of the Mukhtiarkars and A.R.Cs. Rehabilitation and Assistant Mukhtiarkars do not know the Banjar Qadim with the result that people approach the undersigned for the definition.
' The definition of Banjar Jadid and Banjar Qadim is therefore produced as below for information, guidance and compliance of all concerned.
1. Banjar-Jadid.--Land left fallow for consecutive four years is entered as Banjar Jadid if not cultivated in the fifth year.
2. Banjar-Qadim.--If Banjar Jadid not brought under cultivation for further three years i.e. up to the end of seventh year, is entered as Banjar Qadim in the eight year if not cultivated in that year'."
8. Late Mr.Justice Wahiduddin Ahmad as he then was, who delivered his opinion in the said case, while allowing the petition observed further that--"After careful consideration of the arguments advanced on behalf of both the sides it seems to us that on the plain reading of the language used in sub-clause (d) of the correction slip in 1957 it is quite clear that the words "wherever they exist" refer to the actual condition of the soil in the old Sind region and not to the entries made in the Revenue Records or in the special Jamabandis. Had that not been the case, it was unnecessary for the Department to add these important words only in the footnote to the pamphlet applicable to the Sind Region. The learned representative of the Department has failed to draw our attention to the use of any such word in respect of "other areas" in West Pakistan. The only inference from that would be that was done to obviate the difficulty in evaluating such class of land in the absence of any entry in the Revenue Records or in the special Jamabandis in Sind Region. But since the fundamental basis of settlement was that the claimants should be settled on land approximately the same value of that which they had abandoned and left behind in India, it was thought necessary to specifically provide for it in the correction slip. In that view of the matter we are constrained to hold that Department is not justified in re-assessing the indices value of the lands allotted to the petitioners-claimants on any other basis except the one mentioned in the correction slip."
9. Learned counsel for the respondent in reply to the above contention submitted that the petitioner is guilty of 'aches as he did never raise any objection as per above-said correction slip in 1957 to the Central Record Office who was to determine the entitlement. In this respect he referred to paras. 15 and 15(a) of Supplementary Rural Scheme No.1. It is stated in para 15(a) which is relevant to the submission of the learned counsel for the respondent that:- "15-A . The claimants who are dissatisfied with the area verified in the entitlement certificates in Form QPR-V may, if they so desired, file objections, alongwith the entitlement certificate issued in their favour to the Officer on Special Duty (Central Record Office) for reverification as soon as they receive an intimation about the despatch of the entitlement certificates in respect of their applications."
10. The learned counsel for the respondent further submitted that the above-said correction slip was withdrawn by a subsequent notification dated 19-1-1962 declaring the notification to have retrospective effect inasmuch as it was specifically stated therein about the correction slip that "it will be deemed to have never existed thereon".
11. Learned counsel for the respondent submitted lastly that the case, referred to above, did not apply to the facts of the present case inasmuch as the petitioner in that case migrated from agreed area and that she had already been allotted land in pursuance of the said correction slip.
12. I have carefully examined all the above-noted submissions of the learned counsel for the respondent but found them devoid of any force. It is correct that the petitioner did not avail the opportunity provided in para. 15(a) of the Scheme, referred to above, but it is on record that the petitioner submitted his application dated 25-11-1959 (Annexure B) to the Rehabilitation Mukhtiarkar, Tando Allahyar wherein he mentioned several survey numbers as lifts and Banjar lands and requested them to be verified. He further submitted an application dated 30-12-1961 (Annexure B-1) to the Deputy Commissioner Hyderabad (who is also Additional Settlement Commissioner (Lands), Hyderabad) in which he complained that the units for flow and lift (Charkhi) land which existed in his allotment and were duly accounted for have totally been ignored after action was taken under M.L.R. There is also another application dated 12-2-1962 (Annexure B-2) addressed to the Deputy Commissioner, Hyderabad in which he requested him to take into consideration the number of units in respect of flow, lift, irrigation and also Banjar land as classified in Land record Manual. It was further stated in the said application that as regards the position of Banjar for Deh Mangeria the detailed report of cultivation figure' may kindly be had from the taluka Assistant Commissioner, to judge the exact nature of soil. It appears that the Deputy Rehabilitation Commissioner, Hyderabad took up the matter with the Mukhtiarkar, Tando Allahyar asking for the details of the cultivation for the last ten years in respect of survey numbers of Deh Mangeria, presumably to determine the allegation of the petitioner as to the Banjar land of the petitioner, but with no result. Ultimately he filed an application with the Deputy Commissioner (Additional Settlement Commissioner (Land), Hyderabad in or about 1967 which was dismissed by him on 14-3-1968. Then he filed a Revision Application before the Settlement Commissioner (Land) which was also dismissed by his order dated 29-6-1974 against which he filed this petition. It cannot, therefore, be said that the petitioner slept over his rights altogether and did not take any action.
13. Even otherwise the argument advanced on behalf of the respondent is not tenable as the petitioner is not aggrieved of the QPR or the Entitlement Certificate issued to him by the Central Record Office in 1959. He seems to be dissatisfied with the calculation and valuation of the land done by Settlement authorities without taking into consideration the classification of soil of the lands allotted to him as it, in fact, exists. In my view, however, there is no latches. Latches do not mean the delay simpliciter. It should result in adversely affecting the other party who has, in the meantime, gained a benefit of which it would not be deprived of on equitable considerations. Here the Settlement Department can, in no manner, be said to have gained any benefit out of it. On the contrary, a great disadvantage has occasioned to the petitioner due to inaction or in attentiveness of the Respondents to thrash out the matter which the petitioner has been agitating since 1960, as a result of the promulgation of M.L.R. 89/91. Reliance is placed by me on Muhammad Yaqoob Khan v. Member, Board of Revenue 1984 SCMR 940.
14. Mr.Abbas Farooqui, learned counsel for the respondent, however, denied the genuineness of Annexures B and B-1 and described them as fake and fabricated documents. Mr.Najeebullah, the learned counsel for the petitioner stated at the bar that Annexure B' is a true copy submitted to the Mukhtiarkar though not available on the original record of the Settlement Department as pages 129 to 137 of the file are missing. As regards Annexure B-1 he stated at the bar that the same is available on page 145 of the original record of the Settlement Department which was called in Court by the Court's order dated 25-1-1983 which was inspected by him as permitted by this Court.
In any case, he produced copy of notice dated 22-3-1983 in Court during hearing for production of originals of Annexures B, B-1, B-2 and C filed by him in this petition, which was duly received by the learned Advocate for the respondents but he failed to respond to it.
15. As regards the submission of the learned counsel for the respondents that the aforesaid correction slip had been withdrawn on 19-1-1962, retrospectively, as if the correction slip did never exist and so the petitioner is precluded from claiming any relief on the basis of the said correction slip, it has no force in law. The Notification dated 19-1-1962 can have only prospective effect and not retrospective effect even if its operation has been specifically declared to be retrospective in effect.
It is a well-settled principle that Executive's power through notification falls within the field of subordinate legislation B which does not include power to give notification retrospective effect. If an authority is needed the same may be had in the case of Rahmatullah v. Deputy Settlement Commissioner PLD 1963 SC 633. This decision of the Supreme Court was also referred to and relied upon in the case of Sh.Fazal Ahmed v. Ziaullah Khan PLD 1964 SC 494.
16. Mr.Abbas Farooqui's last submission that the case relied on by the petitioner as reported in PLD 1966 Kar. 79 is distinguishable as the petitioner therein, Mst. Fidai Zuhra belonged to agreed area and the land had already been allotted to her, is equally without any force. Paragraph 26 of Supplementary Rural Scheme No.1 under which correction slip has been issued and added to the footnote of the said Pamphlet as conceded by the department, in that case, was held to be applicable to claimants both from agreed area and non-agreed area. In fact, when I pointed out the relevant observations in the said judgment to Mr. Farooqui, he frankly conceded that the concession as to Chahi land at the rate of 10% was applicable to claimants of agreed as well as non-agreed areas.
17. The attempt of the learned counsel for the respondent to distinguish the said case on the ground that in the said case land had already been allotted in pursuance of the slip in 1957, appears to me as an exercise in futility. The case may be factually distinguishable on this aspect, but it makes no difference in law. The pertinent question in the case before me is whether any right had accrued to the petitioner in pursuance of the said slip prior to its withdrawal on 19-1-1962.
18. In this respect let me first state the principle as propounded by the Honourble Supreme Court in Pakistan through the Secretary, Ministry of Finance v. Muhammad Hidayatullah Farukhi, which reads as under:- "There can hardly be any dispute with the rule that apart from the provisions of section 21 of the General Clauses Act, locus poenitentiae, i.e. the power of receding till a decisive step is taken, is available to the Government or the relevant authorities. In fact, the existence of such a power is necessary in the case of all authorities empowered to pass orders to retrace the wrong steps taken by them. The authority that has the powers to make an order has also the power to undo it. But this is subject to the exception that where the order has taken legal effect, and in pursuance thereof certain rights have been created in favour of any individual, such an order cannot be withdrawn or rescinded to the detriment of those rights." PLD 1969 SC 407.
19. The plain reading of the correction slip and the law laid down by the Honourble Supreme Court as folllowed in Mst. Fidai Zuhra's case, on the effect of subsequent notification, as referred to above, clearly prove that the petitioner was entitled to the P.I. Units in respect of Banjar Jadid and Banjar Qadeem land at the rate of 1/4th and 1/8th, respectively of the flow land as per para. (d) of the correction slip as a right had been created in hid favour prior to the withdrawal of Notification i.e. the correction slip.
20. As regards the second contention of the learned counsel for the petitioner with regard to the concession of rebate at the rate of 10% in respect of Chahi land, the QPR and MRV issued in favour of the petitioner show 334 units as Chahi land. Photostat copy Of QPR and MRV have been placed on record during hearing of the case, copies whereof were supplied to the learned counsel for the respondent to which apparently he has no objection as they were the official documents. Learned counsel for the respondent did not advance any fresh argument in reply to the second contention raised by the petitioner's counsel. Relying on the observations made in the case of Fidai Zuhra and others v. Deputy Commissioner and Deputy Settlement Commissioner, Sukkur PLD 1966 SC 79, there cannot now be any dispute between the parties in respect of the concession granted in lieu of Chahi land abandoned by the petitioner at Banaras (India).
21. In this respect it may also refer to an unreported judgment dated 16-6-1971 of this Court by Mr. Justice Noorul Arifin (as he then was) in Constitutional Petition No.371/1965. Facts of that case are somewhat similar to the present case inasmuch as that no land had been allotted to the petitioner in that case in pursuance of the correction slip. The relevant observations read as under:- "It will thus be noted that for Hyderabad and Khairpur Divisions, the correction slip expressly introduced classification of lands as "Banjar-e-Jadid", "Banjar-e-Qadim" and "Ghair Mumkin" etc. This correction slip came on 15th August, 1957. Accordingly, the acreage of land transferred to the petitioner in 1959 in lieu of his claim should have been calculated on the basis of the classification of lands contained in this correction slip, but this was not done. Mr.Wasim Hamid Rizvi contended that this correction slip was withdrawn on 19th January, 1962, and therefore, the petitioner is not entitled to any benefit of the provisions of this correction slip I am unable to accept this proposition for the reason that when the land was first allotted to the petitioner, his acreage should have been calculated according to the correction slip. I am dealing here with an allotment made in 1959, when the correction slip was in force, and not when an allotment made after the withdrawal of the correction slip. Therefore, the petitioner's right to obtain allotment in accordance with the correction slip cannot be said to have been taken away with the withdrawal of the correction slip in 1962."
22. The learned Judge referring to the case of Mst. Fidai Zuhra mentioned that the department had gone in appeal to the Supreme Court against the said judgment in Civil Appeals K-5, K-6, K-7, K-8 and K-9 of 1966 but the same were dismissed by order dated 2-3-1967. Therefore, the observations made in the Karachi case of Mst. Fidai Zuhra have also been confirmed by the Supreme Court.
23. The learned counsel for the respondent at the close of his submissions, placed before me an unreported judgment dated 18-10-1981 by a Single Bench of this Court (Mr.Justice B.G.N. Kazi, as he then was) pronounced in Habib Hasan Qadri v. Settlement Commissioner (Lands) Sind C.P.No.1368 of 1974 against the same impugned order of the Settlement Commissioner (Lands) for Sind which has been challenged in this petition as well. With respect, I do not find myself in agreement with the learned Single Judge. He appears to have dismiss the petition on the point of laches and on the ground that the provision regarding 10% concession on Chahi land was applicable to claimants from the agreed area. On both these points I have given reasons for disagreement in this judgment.
24. For the reasons stated above, I declare the impugned order dated 14-3-1968 of the Deputy Commissioner/Additional Settlement Commissioner (Lands), Hyderabad and the order dated 29- 6-1974 of the Settlement Commissioner (Lands), Hyderabad to be without lawful authority and of no legal effect. In consequence, the entitlement of the petitioner to agricultural land should be determined in pursuance of para (d) of the Correction Slip, referred to above. I, therefore, direct respondents Nos.1 and 2 to classify lands which are Banjar Jadid and Banjar Qadeem in terms of the said Correction Slip and make necessary allowance for them and also allow 10% concession in lieu of Chahi lands to the petitioner, as admittedly he has not been allotted any Chahi land or share in a well.
25. In the result, I allow the petition and remand the case to Settlement Commissioner (Land) Sind, Hyderabad to decide the entitle ment of the petitioner, after notice to him, as directed above, and in accordance with law.
26. There shall, however, in the circumstances of the case, be no order as to costs.