1. SALAHUDDIN AHMED, J.-This appeal, by special leave, is from the order of a Division Bench of the former High Court of West Pakistan, Peshawar Bench, dismissing the appellant's Constitution petition under Article 98 of the late Constitution of 1962.
2. The dispute between the parties is in respect of three joint holdings of agricultural land situated in village Daman Afghani, Tehsil and District Peshawar. Respondent No. 3 Habibur Rehman claimed to be a co-sharer of the holdings along with the appellant and respondents Nos. 6 to 32. Respondent No. 3 moved three applications before respondent No. 1 the Collector, Peshawar, under paragraph 24 of the Martial Law Regulation No. 64 called the West Pakistan Land Reforms Regulation (hereinafter called `the Regulation') for nomination of one of the co-sharers to manage all the joint holdings. The Collector, however, instead of nominating one of the co-sharers as Manager of the joint holdings, purported to act on the letter of the Land Commission, dated the 30th August 1966 (this appears at page 20 of the paper-book) and by his order dated the 20th June 1968, directed, inter alia, that the joint holdings might be leased out to the highest bidders from amongst the co- sharers for a period of one year likely to be renewed if there was no rapprochement amongst them.
3. The appellant preferred an appeal from this order, but it was dismissed by the Commis--sioner, Peshawar Division, on the 17th July 1968. In the meantime, the joint holdings were put to auction and were given on lease to the highest bidders, namely, respondents Nos. 3, 4 and 5. Orders were also passed that the possession of the entire land should be taken over from the appellant. The appellant challenged this order before the High Court in a Constitution petition on the ground that the aforesaid letter relied on by the Collector was an amendment of rule 3(3) of the Land Reforms (Appointment of Managers of Impartible Joint Holdings) Rules, 1964, and as no sanction of the Govern--ment had previously been obtained as required under paragraph 6 of the Regulation, the amendment contemplated was without any lawful authority.
4. The High Court, by its judgment dated the 2nd May 1969, accepted this contention and held that there was nothing on the record to show that sub-rule (3) of rule 3 of the Land Reforms Regulation was made by the Land Commission in pursuance of the rule-making powers under paragraph 6 of the Regulation with the previous sanction of the Government. The High Court, however, found that the provision in question made in sub-rule (3) of rule 3 was within the scope of the powers of the Commission as embodied in sub-paragraph (5) of paragraph 4 of the Regulation. The High Court came to this conclusion for the reason that the matter in question was not previously provided for in the Regulation and a difficulty had arisen by reason of the vacuum on the subject in giving effect to the purposes of the Regulation.
5. Leave to appeal was granted to consider the question whether sub-rule (3) of rule 3 was framed In accordance with paragraph 6 of the Regulation as well as to consider the contention that a provision had already been made in this respect.
6. The letter of the Land Commission dated the 30th August 1966, is in these terms:- "I am directed to refer to your Memo. No. 176/LR, dated the 9th May 1966, addressed to the Land Commissioner, Peshawar Division, on the above-subject and to state that rule 3(3) of the Land Reforms (Appointment of Managers of Impartible Joint Holdings) Rules, 1964, has been amended so as to provide that a joint holding shall be leased out to the highest bidder in the presence of the co-sharers for a period of one year (likely to be renewed if there is no rapprochement during the year) and the bid money be distributed among them according to their respective shares recorded in the jamabandis. Vide this Secretariat Notification No. A&R-601/66/3186-LC, dated 12th July 1966. In view of this amendment, the difficulties of the co-sharers will now be solved when each of them will get his share of income/produce. In the circumstances any further instructions as proposed hardly seem necessary."
7. It has been conceded before us quite rightly that the aforesaid letter cannot be regarded as an amendment of the rule under paragraph 6 of the Regulation. This is quite evident from the provisions of the paragraph itself which are as follows:---- "6. Power to make rules.-The Commission may, with the previous sanction of Government, make rules for carrying out the purposes of this Regulation, including rules on matters relating to or connected with the presentations, hearing and determination of appeals from, and applications for the revision and review of, orders made under this Regulation."
8. There is also force in the appellant's contention that para--graph 24 of the Regulation which deals with the management of impartible joint holdings does not contemplate the kind of powers sought to be included in the amendment in question. Paragraph 24 runs thus: "24. Management of impartible joint holdings.-(1) A joint holding the partition of which is not permissible under para--graph 23 shall continue to be managed as a single unit.
(2) In the event of a dispute regarding the management of any such joint holding as aforesaid:
(a) the co-shares may select one of themselves, by drawing of lots or otherwise, who will manage, on their behalf, the holding, and from whom they will receive their shares of the income, or
(b) if the co-sharers cannot so select, they may request the Collector of the District in which such holding is situate to nominate one of the co-sharers to manage as aforesaid.
(3) If in the opinion of the Commission, no arrangement for joint management between the co- sharers is possible, the Commission may acquire the holding on payment of such compensation as may be determined in the prescribed manner.
9. Explanation.-If a co-sharer is for the time being a minor o lunatic, his guardian shall be treated as a co-sharer for the purposes of this paragraph."
10. It has, however, been contended that the letter of the Land Commission dated the 30th August 1966, may be regarded as a order by the Commission in exercise of its powers under paragraph 4, sub-paragraph (5) of the Regulation. Sub-paragraph (5) of paragraph 4 speaks as follows :- "(5) 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."
11. Sub-paragraph (5) mentions two things, namely, (1) where any matter is not provided for in the Regulation, or any difficulty arises in giving effect to the purposes of the Regulation ; and (2) the Commission may, by order notified fn the official Gazette, make such provision in respect thereof as it thinks fit. Such order shall be deemed to form part of the Regulation.
12. It does not appear that there was any order of the Com--mission notified in the official Gazette as contemplated in sub-paragraph (5). Nevertheless the Land Commission possessed wide powers under paragraph 4k5) of the Regulation, and could by means of an order notified in the official Gazette pass the impugned order as contained in its aforesaid letter. It was not a case of utter lack of jurisdiction.
13. Learned Advocate-General appearing on behalf of the Collector has brought to our notice that the appellant had approached the Chief Land Commissioner in three revisional applications, but the applications were withdrawn as there was a compromise between the parties. This material fact has not been mentioned by the appellant in his leave petition before us. He had, however, stated it in his Constitution petition before the High Court in the following manner:---- "(i) That the impugned orders passed by the learned Collector are in contravention of the statutory provisions and rules, in that, the respondent Habibur Rehman is not a co-sharer for the reason that the matter is still sub judice with the Member, Board of Revenue and, as such, he has no locus standi as co-sharer under the West Pakistan Land Reforms (Appointment of Managers of Impartible Joint Holdings) Rules, 1964."
14. If the matter was sub judice, it was enough to dismiss the Constitution petition on this ground alone.
15. The appeal is, accordingly, dismissed with costs.