' The case has been taken up in exercise of suo motu revisional powers under paragraph 29 of M.L.R. 115 of 1972 as a result of the order of Peshawar High Court, dated 13-3-1983 in Writ Petition No. 7 of 1977. The order of the learned High Court accepting the writ petition filed by the respondent set aside the order of the Federal Land Commission, dated 30-9-1976 whereby concession of 2000 P.I.Us. Allowed to the respondent (declarant) under paragraph 8 of the Land Reforms Regulation, 1972 was withdrawn and it was ordered that land equivalent to 2000 P.1. Us. Be resumed. While setting aside the Federal Land Commission order, dated 30-9-1976 the learned High Court had also remanded "the case back to the Inspection Team, Federal Land Commission N.-W.F.P. Peshawar to proceed according to law (sic)".
2. Counsel for the respondent was heard and the judicial record as well as the relevant revenue record was examined. Since there appeared to be an error in the order of the learned High Court which had remanded the case to the Federal Land Commission Inspection Team to proceed in accordance with law, some difficulty was experienced in proceeding with the matter, as neither is there any entity in law by the name of Inspection Team nor does the law lay down any procedure which the Inspection Team could follow in compliance with the direction of the learned High Court.
Counsel for the respondent who was asked to explain the respondent's position in this respect was not able to do so. It was, therefore, decided when the case was last heard, on 5-9-1985 at Abbottabad that the matter be referred to the Advocate-General, Peshawar High Court for filing a review petition in the High Court against the said order so that fresh proceedings could be taken up by the proper forum. The Advocate-General, N.-W.F.P., Peshawar, however, took the position that the N.-W.F.P. Inspection Team was in fact in existence. He also stated that the time prescribed under law to file a review petition was 30 days from the date of announcement which in the present case was 13-3-1983 and thus for the time already run out the delay of each day will have to be explained if an application for condonation of delay was to be made. As the writ petition had been accepted by the learned High Court setting aside the suo motu action under para. 29 of the Land Reforms Regulation, 1972, there is no alternative but to proceed on the assumption that a fresh hearing is what the learned High Court really intended to be done while remanding the instant case in their order, dated 13-3-1983.
3. Brief facts of the case are that Sardar Mehboob Elahi (deceased) was a declarant under the Land Reforms Regulation, 1972 (M.L.R. 115) and was allowed concession of 2000 P.I.Us. On account of his installing a tubewell in his land in district Sheikhupura under paragraph 8(2)(ii) by the Deputy Land Commissioner, Hazara. The Member, Federal Land Commission vide his order, dated 30-9- 1976 set aside the order of the Deputy Land Commissioner on the ground that the tubewell on the land in question had not been installed by the declarant and that, therefore, his holding should be redetermined and an area equivalent to 2000 P.I.Us. Be further resumed from him.
4. Form L.R. VII, which is an application for retention of additional area under paragraph 8(2) of M.L.R. 115 by a declarant if he had a tubewell of not less than 10 horse powers installed on his land, was examined. L.R. VII filed by the declarant, on 25-4-1972 shows that two tubewells were installed in Khasra Nos. 45 and 12 in Chak No. 62/9 in Tehsil Nankana, District Sheikhupura in 1966. No attachments were filed by the declarant with this form as proof of installation of the tubewells or the horse power of the tubewells as required in columns 3 and 4 of the Form. The claim for the concession could conceivably, have been rejected totally by the Deputy Land Commissioner on the ground that the Form L.R. VII filed by the declarant was incomplete and did not fulfil the requirements of law. The record also shows that the declarant had filed a similar L.R. VII in District Sheikhupura which is also without attachments of proof of installation of the tubewells and the horse power. The Register Haqdaran Zamin in respect of the declarant's land in Chak No. 62/9 Tehsil Nankana, District Sheikhupura shows that the land was jointly owned by the declarant alongwith his brother and other relatives and that his own share in this holding was only 7/40.
There is no evidence available to show that the tubewells installed on his land are also not similarly jointly owned and in the absence of such evidence the declarant can be held to be the owner only to the extent of 7/40 share in the tubewells.
5. Counsel for the respondent in his arguments contended that the fact that L.R. VII filed by the declarant was incomplete should not deprive him of the concession allowed to him under law on account of tubewell as the requirements of L.R. VII were a mere formality and in any case must not be treated as mandatory. He also contended that paragraphs 8(2) and (3) envisage installation of tubewells and not its ownership. He contended that since the fact of tubewell being installed on the land of the declarant has been established, the declarant should be allowed the concession of 2000 P.I.Us. Under the law irrespective of whether the tubewell was owned by him or by somebody else.
6. I will, therefore, discuss the case and the points raised by the counsel for the respondent at the last hearing, on 5-9-1985. I cannot accept his contention that ownership of tubewell is not imperative for the purpose of determining whether a declarant is to be allowed concession under paragraph 8(2) of M.L.R. 115 or not. Under Punjab Land Commission Notification No. DSH-884- 72/2792-LC(II), dated 12-7-1972 which was issued under paragraph 4 of the Land Reforms Regulation, 1972 (M.L.R. 115) with the approval of the President the concession is to be allowed only if tubewell installed on the declarant's land is also owned by him. The said Notification has become part of the main legislation itself and must, therefore, be treated as mandatory. The respondent can, therefore, be allowed the concession under paragraph 8(2) only to the extent of 7/40 share in the tubewells on the assumption that the tubewells are also owned by the joint owners in proportion of their shares in the land. In the absence of any evidence to the contrary. I remand the case to the Deputy Land Commissioner, Hazara for redetermining the declarant's holding after allowing him 7/40 share of 2000 P.I.Us. Under paragraph 8(2)(3). Since judgment in this case was reserved at the time of the last hearing, it should be conveyed to all the parties by the Deputy Land Commissioner concerned.