' AHMED Au U. QuRESHI, J.-In this petition the petitioner prays as under :- ' That this Court be pleased to :-
(i) Declare that the petitioners are the lawful allottee of 237 acres, fa ling in Deh Domewali, Taluka Kashmore, District Jacobabad, having been sold the same by the Sind Land Commission.
(ii) Declare that the orders of respondent No, 2, dated 12th August, 1984 are without any lawful authority and are of no legal effect.
(iii) To recall the directions issued by this Honourable Court in C. P. No, 41 of 1982, and to dismiss the said petition.
(iv) Any other suitable writ order, directions or declaration that this Hon'ble Court deems fit and proper to pass in the facts and circumstances of this case.
(v) Award costs of these proceedings.
' The brief facts leading to this petition are that the petitioners are displaced persons from Mangla Dam and they alongwith some other displaced persons were allotted 507 acres of State land situated in .Deh Domewali, Taluka Kashmore, District Jacobabad and the possession of the same was delivered to petitioner's representatives on 18-3-1967. This land in fact was earlier leased out to Mir Ali Bilawal Dombki who had surrendered this land to the Government under M. L. R.
64. Prior to the allotment of land to the displaced persons from Mangla Dam, 270 acres of this land had been leased out by the Assistant Commissioner, Kandhkot to some other local persons.
Consequently there arose dispute as to the status of the land as to whether it was a resumed ,land under M.L.R. 64 or it was State land. This tug of war between two departments of Government viz. Delegatees of Land Commission and the Colonization Authorities of Gudu Barrage, who had allotted the land to the displaced persons from Mangla Dam, was finally resolved by the West Pakistan Land Commission who in its meeting held on 15-6-1970, approved the sale of 270 acres to Mangla Dam displaced persons at the rate of 20 per P. I Unit. However, this decision was made with respect to only 270 acres out of the 507 acres. No orders were passed with regard to 237 acres which were allotted to the present petitioners. There was exchange of correspondence between various departments in this respect and finally the Chief Land Commissioner, Sind by order, dated 30th March, 1982 regularised the sale of 237 acres to the petitioners. However, before this order, the respondents Nos. 3 to 18 had also preferred claim before the Chief Land Commissioner in respect of this land, Their application was rejected by Chief Land Commissioner simultaneously with order of regularisation of the sale of the land to the petitioners. The respondents filed Constitutional Petition No, 41 of 1982 in this Court against the petitioners and the Chief Land Commissioner, Sind praying therein that the impugned orders of regularisation of sale of disputed land to the respondents as Mangle Dam displaced persons be declared as illegal, ultra vires and void, This petition was decided by a Division Bench of this Court on 8-3-1983. The operative part of this judgment reads as under :- "In this view of the matter in our view it will be just and proper to remand the case to respondent No, 2, Deputy Land Commissioner, Jacobabad with the direction to hear all the parties and to determine their entitlement in accordance with law."
' In pursuance of this direction the Deputy Land Commissioner, after hearing the parties, passed the impugned order, the operative part of which reads as under :- "The cumulative effect of the entire evidence and perusal of relevant record lead me to one conclusion that disputed land viz. 237 acres Deh Domewali, Taluka Kashmore is a resumed piece of land. Accordingly 1 hereby order that the said land viz. 237 acres be disposed of under Land Reforms Policy under paragraph 18 of M. L. R. 115 of 1972 to the eligible persons."
' We have heard Mr. M. A. Rashid for the petitioners, Mr. Muhammad Aslam Bhutto for respondents 3 to 18 and Additional Advocate-General for respondents 1 and 2 at length. We have also gone through the relevant document produced by the parties.
It is conceded by Mr. M. A. Rashid that land in question was resumed land under M. L. R.
64. This appears to be the legal view of the matter. The fact that the sale of 270 acres of land was regularised by the West Pakistan Land Commission in 1970 and the sale of 237 acres is alleged to have been regularised by the Chief Land Commissioner, Sind in 1982 which regularisation is accepted by the petitioners, itself shows that land is a resumed land and, therefore, Land Commission had disposed of or purports to dispose it of. The land resumed under M. L. R. 64, vested in the Government and was to be disposed of by the Land Commission constituted under said M. L.
R. Or its delegates. Para. 19 of M. L. R. 64 deals with the sale and disposal of resumed land which reads as under :- "19. Sale of resumed land. -(1) Land resumed under Part IV shall in the first instance, be offered for sale, on such terms and conditions as may be prescribed, to the tenants who are in cultivating possession of it, and any such land not sold to such tenants, shall be offered for sale to such other persons, and on such terms and conditions, as may be considered suitable by the Commission.
(2) Interest may be charged on the price payable under sub-paragraph (1) at such rates as may be prescribed."
' This M. L. R. 64 was repealed by para. 32 of M. L. R. 115 promulgated in 1972. Sub-para. (2) of this para. Saves certain rights, obligations, liabilities, etc. Acquired, accrued or incurred under M.L. R. 64 and subpara. (3) saves pending proceedings. Sub-para. (4) which appears relevant to the present case provides :- "(4) Land vesting in Government under the repealed regulation and not granted to any person before the repeal thereof shall be disposed of or utilized by Government as far as may be in accordance with the provisions of Part V,"
' Mr. M. A. Rashid contends that certain rights had accrued to the petitioners under M. L. R.
64. This claim is based on the allotment of the land to the petitioners in 1967 and delivery of its possession in 19661967.
It is admitted fact, that the petitioners were not tenants in cultivating possession of the disputed land in 1958 which could entitle them to the sale of land under para.
19. Their subsequent possession in 1967 would not create any right under para. 19 as tenants. It is admitted fact that the allotment of land in 1967 was made to the petitioners by Gudu Barrage Colonization authorities and not by the Land Commission or its delegatee. In fact this allotment was not considered as legal by the Land Commission which had, therefore, to legalise it by subsequent order of sale of 270 acres in 1970 and the sale of the present land in 1982. Therefore, the allotment or sale of the land by any authority which had no jurisdiction to sell the land to the petitioners in 1968 did not create any legal right in favour of the petitioners. In fact even the petitioners pray for declaration that they are lawful allottees of the land. Their allotment by incompetent authority cannot be considered as lawful. Therefore, no rights were created or accrued to the petitioners under M. L. R. 64 that could be saved by sub-para. (2) of para. 32 of M. L.
R.
115.
' Similarly the respondents do not claim to have been sold the land by any competent authority under M. L. R.
64. Thus, land in question remained undisposed of and, therefore, under sub-para. (4) of para. 32 of M. L. R. 115 it had to be disposed of or utilised as far as may be in accordance with Part V of M. L. R.
115. The finding of the learned Deputy Land Commissioner, Jacobabad in the impugned order, that land had to be disposed of under para 18 of M. L. R. 115 does not appear to be wrong or illegal. Para. 18 of M. L. R. 115 may also be reproduced as under :- "18. Grant of land to tenants.,-(1) Land which vests in Government under the provisions of paragraph 13 or paragraph 14 shall subject to the other provisions of this paragraph, be granted free of charge to the tenants who are shown in the Revenue Records to be in cultivating possession of it in Kharif 1971 and Rabi 1971-72 or in the case of land vesting in Government on the basis of a declaration made pursuant to clause (ee) of sub-paragraph 12, to the tenant who is shown in the Revenue Record to be in cultivating possession of it in the year immediatly preceding such declaration.
' Provided that no land shall be granted to tenants, who but for the making of this Regulation, would have entitled to inherit land from any of the person from whom land has been resumed under this Regulation.
(2) Where a tenant who is entitled to the grant of land under the said sub-paragraph-
(1) already owns any land, he shall be granted only so much land under the said sub-paragraph which together with the land already owned by him equals an area of subsistence holding.
(3) Where any land is not shown in the Revenue Records to be in cultivating possession of any tenant, during Kharif 1971 and Rabi 1971-72 it shall be granted to such tenant or other persons, owning less than a subsistence holding, and on such terms and conditions, as the Government may determine.
' It will be seen that in prayer No, (iii) the petitioners have prayed that the earlier order passed by Division Bench of this Court in C. P. No, 41 of 1982 be recalled. This petition has been filed under Article 9 of the Provisional Constitution Order, which after the revival of the Constitution, would disposed of under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. Though not so specifically worded, by this prayer the petitioners in fact seek declaration from this Court under Article 199 (1)(0)(ii) of the Constitution which reads as under :- "199. Jurisdiction of High Court.-(1) Subject to the Constitution, a High Court may, if it is satisfied that no other adequate remedy is provided by law-
(a) on the application of any aggrieved party, make an order-
(ii) declaring that any act done or proceeding taken within the territorial jurisdiction of the Court by a person performing functions in connection with the affairs of the Federation, a Province or a local authority has been done or taken without lawful authority and is of no legal effect."
' It is contended by Mr. M. A. Rashid that the question for decision in C. P. 41 of 1982 involved disputed question of fact and law and, therefore, it was not a suitable subject for adjudication under the constitutional jurisdiction of the High Court. In support he has relied on case reported in PLD 1968 SC 185. It was observed by their Lordships therein :- "It appears to me that disputed questions of fact and law, requiring investigation, arise for consideration in this case which would therefore, not be a suitable subject for adjudication under Article 98 of the Constitution. The appellant, must, therefore, be relegated to the remedy open to him by a regular civil suit, if so advised."
This Court is not sitting as appellate Court and, therefore, cannot give any finding as to the suitability, propriety or otherwise of order passed by the earlier Division Bench in the said petition.
This Court can only declare, that the order passed was without lawful authority or of no legal effect, if so proved by the petitioners. In fact it is not even alleged in the petition, that the order passed by the Division Bench of this Court was without lawful authority or of no legal effect. Mr. M. A. Rashid candidly conceded, that the learned Judges of the Division Bench had the authority to pass the order in question but he only attacks the suitability and propriety of such order under the circumstances of the case.
' Apart from the fact, that we cannot strike down or recall the order only on the point of propriety and suitability, it may be seen that admittedly the petitioners, who had the right of appeal, did not file appeal against the said order and allowed it to acquire finality. Not only that they did not file appeal but they, in pursuance of the said order, subjected themselves to the jurisdiction of the Deputy Land Commissioner and appeared in the proceedings before him. Only because, they are not satisfied with the order passed by the Deputy Land Commissioner, it could not give them right to challenge the order of High Court which has acquired finality. In fact the learned Judges of the High Court have acted in accordance with the principles laid down by their Lordships of the Supreme Court in the abovementioned case. Instead of deciding the question as to whether or not the sale of land in 1982 legally conferred any rights upon the petitioners, which involved question of fact and law, the learned Judges directed that Deputy Land Commissioner, a delegatee of Land Commission, to decide the entitlement of the parties in accordance with law. Though not so specifically stated in the order, but such directions implied that the order of regularisation passed by the Land Commission in 1982, was set aside by the High Court and Deputy Land Commissioner was directed to determine the title of the parties afresh in accordance with law.
' In the impugned order, the learned Deputy Land Commissioner ha rightly decided the law under which the rights of parties had to be determined but he has in fact failed to specifically determine the rights of the parties, which he had to determine in pursuance of order of this Court, which is still valid and binding upon the parties as well as the Government.
' The rights of the parties with regard to land are yet to be determined by the competent authority viz. Deputy Land Commissioner who has been ordered by this Court, in exercise of its constitutional jurisdiction to so determine. Under the circumstances we decline to grant the prayerss mentioned in sub-paras. (0, (ii) and (iii) of the prayer clause in the petition, but partly allow the petition to the extent that the Deputy Land Commissioner, Jacobabad is directed to decide after hearing parties, entitlement, if any, of the parties under M. L. R. 115 within six months. In the circumstances the parties are directed to bear their own costs.
' This petition was disposed of by short order dated 19-5-1986. Above are the reasons in support of the said order.