1. ' JAVID IQBAL,J.--We have before us two appeals namely Civil appeal No. 115 of 1976 and Civil Appeal No. 116 of 1976 which are directed against the judgment passed by a Division Bench of the Peshawar High Court Peshawar in Writ Petition No. 98 of 1975. Therefore, these are being taken up and disposed of together.
2. ' Writ Petition No. 98 of 1975 was filed by respondents Nos. 1 to 10 in both these appeals in order to challenge the legality of a notice issued by the Federal Land Commission (Appellant No. 1 in Civil Appeal No. 115 of 1976) for a suo motu revision under para. 29 of M.L.R.
115. The matter was decided in favour of the aforesaid respondents by the Peshawar High Court, Peshawar whose writ petition was accepted and the Federal Land Commission etc. Were ordered to refrain from reopening the question of their title regarding ownership of disputed land which stood finally settled under the decrees of the civil Courts in a contested litigation with them as land-owners on one side and the tenants on the other. Aggrieved of the aforesaid judgment passed by the Peshawar High Court the Federal Land Commission and Federal Government of Pakistan as appellants have filed Civil Appeal No. 115 of 1976 as against respondents landowners whereas Civil Appeal No. 116 of 1976 has been filed by Noor Khan and seven others as tenants claiming ownership of the said land as against the aforesaid respondents.
3. ' The relevant facts are that the disputed land is situated in Upper Tanawal, District Hazara and it consists of two large tracts namely Shergarh Darband which was uncle the administration of Nawab of Amb (Muhammad Fareed Khan) and Phulra which was under the administration of Khan of Phulra (Khan Abdul Latif Khan). Before 1950 this area was unsettled but from 1950 onwards, to the whole of the estate of Upper Tanawal, the Punjab Land Revenue Act was made applicable. As a result of this extension of the Act, settlement operations started in the said estate. So far as Phulra was concerned its settlement record was prepared in 1951-52 in which Khan of Phulra and Guzarakhors (blood relations other than the first son) were shown as the owners of the land and the persons in occupation were shown as tenants at will paying rent to him. Settlement of Shergarh Darband started in 1953. The Revenue authorities recorded the statements of the proprietors and tenants but before the Revenue record could be prepared disturbances broke out in the whole of the Upper Tanawal between the proprietors and the tenants. Thereupon the Government intervened and took possession of the estate and thus in the Revenue record, the Government was shown as the owner of the estate. The Government prepared a register called {{URDU TEXT}}whereunder an arrangement was made by the Government for the recovery of rent from the tillers of the land and this rent after the deduction of the expenses of the recovery was paid to the proprietors i.e. Nawab of Amb, Khan of Phulra and Guzarakhors under them, This arrangement continued until 1959. On 16th April, 1959 the Government approved final settlement operation whereby the rights of ownership of the respective estates of the Nawab of Amb and Khan of Phulra as well as their Guzarakhors were admitted and the respective estates were transferred in their names. Mutations were attested in the Revenue record in the names of the Nawab and the Khan who were shown as owners in the subsequent Jamabandis. The order dated 16th April 1959 is as follows: "From: Sher Afzal Khan Esquire, CSP, Revenue and Rehabilitation Department.
4. To: Nawab Muhammad Farid Khan Darband, Amb.
5. Dated Lahore the 16th April, 1959.
6. Subject: Ownership of Lands in the Excluded Area of Upper Tanawal.
7. ' Sir, ' I have the honour to inform you that the Government of West Pakistan has decided to recognise you as the owner. These rights would however be subject to the provisions of the West Pakistan Land Reforms Regulation (Martial Law Regulation 64) which applied to the whole of West Pakistan (including the excluded areas) except the special area.
8. ' Your obedient servant, Sd/- (Nawabnda Sher Afzal Khan) Secretary to the Government of West Pakistan, Rev: and Rehabilitation Department.
9. ' From 27 July, 1959 M L R 64 was formally extended to both the areas of Upper Tanawal. As a result the respondents submitted their declarations under M L R 64 and their holdings were accordingly determined under the aforesaid regulation through payment of compensation to them for the surrendered land. Aggrieved of the same the tenants filed Writ Petition No. 40 of 1961 before the then High Court of West Pakistan at Lahore challenging the order dated 16th April, 1959 passed by the Government of West Pakistan on the ground that the respondents should have not been treated as owners. In this writ petition the Government as well as the Land Commission had been impleaded as parties and they took the stand that the aforesaid order dated 16 April, 1959 had been validly passed. The said writ petition was dismissed on 18 May, 1962. The High Court held that the objection of the tenants was futile because if the Government was the owner or had taken upon itself the role of the owner, then it could confer ownership on any person. It was also observed in the judgment that if the tenants claimed for themselves that they should be treated as occupancy tenants then they should seek a declaration of their title as such by making a recourse to the civil courts if so advised. A petition for leave to appeal filed by the tenants against this judgment was likewise dismissed. Thereafter in 1964 the tenants moved another writ petition namely Writ Petition No. 262 of 1964 before the then High Court of West Pakistan Peshawar Bench and this time they challenged the gifts made by the declarants under M L R 64 in favour of their heirs. This writ petition was also unsuccessful and leave to appeal against the order of dismissal was likewise refused by the Supreme Court on 24th November, 1964.
10. ' In the meantime a portion of the disputed land came under Tarbela Dam and was requisitioned.
11. Thus from 1967 onwards the respondents and other owners whose lands had been taken over were paid compensation.
12. ' Not being successful in the aforesaid writ petitions as well as petitions for leave to appeal before the Supreme Court, the tenants instituted representative civil suits on 21st June, 1965 challenging the order of the Government dated 16th April, 1959 as well as making of the gifts of the declarants to their heirs under M L R 64 and claiming title to the disputed land as owners. These suits were dismissed by the Senior Civil Judge, Hazara on 15th July, 1969. Their appeal before the District Judge failed and their second appeal in the High Court was likewise dismissed on 15th April, 1974. Then they moved petitions for leave to appeal in the Supreme Court but these were dismissed as withdrawn as by then the tenants had moved the Federal Land Commission for redress of their grievances. These proceedings culminated in the impugned order dated 28th January, 1975 passed by the Chairman Federal Land Commission-Islamabad. The relevant portion of the impugned order is as follows: "I have perused the petitions and subsequent record by which these proceedings were initiated.
13. After hearing the arguments of the learned counsel and perusal of the record I find that this is a proper case for invoking the suo motu revisional jurisdiction of the Federal Land Commission. I, therefore, act accordingly. The record of the case may be called for and the parties summoned for 1st March, 1975, as all the learned counsel agree to this date. I learn that Mufti Muhammad Idrees who would be possibly representing the heirs of Nawab Muhammad Saeed, has also agreed to this date.
14. ' Gifts made by Nawab Muhammad Saeed in favour of Salahuddin will also be scrutinised on that date. The parties concerned with that may also be summoned and the relevant record called for."
15. ' Accordingly appellant No. 1 in Civil Appeal No. 115 of 1976 i.e. Federal Land Commission issued in the Pakistan Times of 21st March, 1975 notices in suo motu revision under para. 29 of M L R 115 in which the respondents were directed as follows: "The above-mentioned revision is pending before the Chairman, Federal Land Commission under his suo motu jurisdiction to examine as to whether the Nawab of Amb, Khan of Phulra and the Guzara Khors were Jagirdars or they were owners and what is the effect of M L R 64 and M L R 115 on their rights in the lands of Upper Tanawal. The next date fixed for hearing is 28-3-1975 at the office of the Federal Land Commission, Pak Secretariat No. III, Rawalpindi. If any of such persons chooses to be heard in the above-noted revision proceedings, he can do so either in person or through his recognised agent."
16. ' These proceedings were challenged by the respondents by way of Writ Petition No. 98 of 1975 before the Peshawar High Court Peshawar which was accepted by a Division Bench of that Court on 3rd February, 1976 as stated above. It was held that para. 29 of the Land Reforms Regulation, 1972 was not retrospective in effect to the extent that it could wipe out the vested rights particularly when those rights stood affirmed by decisions of the civil Courts and furthermore when the scope of the jurisdiction conferred respecting suo motu revision was limited to the decisions of the authorities exercising powers under either of the two Regulations and that as such the action of the Government in the exercise of its plenary jurisdiction could not be challenged. Thus the Federal Land Commission was ordered to refrain from reopening the question of the title of the respondents which had already been settled.
17. ' Two separate petitions for leave were filed against the aforesaid judgment of the Peshawar High Court Peshawar by the tenants and the Federal Land Commission as against the respondents land-owners; and it was granted in both the cases to consider as to what is the proper construction of M L R 115 of 1972 and especially of para. 29 of that Regulation as it stood after its amendment in 1975.
18. ' It was argued by Qazi Abdur Rashid learned counsel for the appellants in Civil Appeal No. 116 of 1976 that para. 29 of M L R 115 after its amendment in 1975 read with the other provisions of the Regulation conferred ample power on the Federal Land Commission to reopen the cases which related to transactions past and closed. The other provisions of this Regulation on which reliance was placed in this connection are laid down in para 32. The submission is that para. 29 of M L R 115 was amended by Land Reforms (Amendment) Act, 1975 whereunder the scope of the suo motu revisional powers of the Federal Government or any person authorised by it in that behalf were extended even to the proceedings pending or in which orders had been passed under M L R 64 i.e. West Pakistan Land Reforms Regulation, 1959 which had been repealed under para. 32 of M L R 115 as amended. In other words under para. 32 of M L R 115 as amended revisional power was kept alive in regard to the disputes pertaining to landed property which were pending or had been determined under the repealed M L R 64.
19. ' At this stage it would be relevant to reproduce the provisions laid down in para. 29 as amended:
29. Revisional power of the Federal Government. The Federal Government, or any person authorised by it in that behalf, may at any time, of its, or his own motion or otherwise, call for the record of any case or proceedings under this Regulation or under the repealed Regulation 64, which are pending or in which a Commission or any other authority appointed under this Regulation or under the repealed Regulation, other than the Federal Land Commission constituted under paragraph 4-A, has passed an order, for the purpose of satisfying itself or himself about the correctness, legality or propriety of such an order, and may pass such order in relation thereto as the Federal Government or, as the case may be, such person thinks fit: ' Provided that the Federal Government may, from time to time, specify the cases or class of cases in which it desires to pass final order: ' Provided further that no order shall be passed under this paragraph revising or modifying an order affecting any person unless such person has been afforded an opportunity of being heard: ' Provided further that the record of any case or proceedings in which a Commission or other authority has passed an order shall not be called for under this paragraph by the Federal Government or the person authorised by it--
(a) of its or his own motion, after the 30th day of September 1975, or
(b) on the application of any aggrieved person made after the expiration of sixty days from the date of such order or from the enactment of the Land Reforms (Amendment ) Act, 1973, whichever is later, excluding the time requisite for obtaining a copy of such order."
20. ' Para. 32 of M L R 115 reads as follows:-- "Repeal and saving: (1) The West Pakistan Land Reforms Regulation (Regulation 64 of 1959), hereinafter referred to as the said Regulation, is hereby repealed.
(2) Subject to the other provisions of this Regulation, the repeal of the said Regulation shall not affect--
(a) the previous operation of the said Regulation or the validity, invalidity, effect or consequences of anything already done or suffered thereunder; or
(b) any right, title, privilege, obligation or liability acquired accrued, or incurred thereunder; or
(c) any penalty, forfeiture or punishment incurred in respect of any offence under the said Regulation; or
(d) any investigation, legal proceedings or remedy in respect of any such right, title, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid; and ' any such investigation, legal proceedings, or remedy may be instituted, continued or enforced and any such penalty, forfeiture or punishment, may be imposed as if this Regulation had not been made.
(3) Any proceedings pending before an authority constituted or Appointed under the said Regulation, immediately before the coming into force of this Regulation, shall stand transferred to such authority constituted or appointed under the said Regulation as the Chairman may, by, order published in the Official Gazette, specify in this behalf, and the authority to which such proceedings are transferred shall, in such proceedings, act in accordance with the provisions of the said Regulation, as if it had been appointed under the said Regulation.
(4) Land vesting in Government under the repealed Regulation and not granted to any person before the repeal thereof shall be disposed of or utilised by Government as far as may be in accordance with the provisions of Part V. (Added by Land Reforms (Amendment) Act XXX of 1974).
21. ' It is submitted by learned counsel that the respondents had been recognized as owners of the disputed land vide order dated 16th April 1959 subject to the provisions of M L R 64. The argument is that despite the repeal of M L R 64 under para. 32 of M L R 115, it had been kept alive and under para. 29 of M L R 115 as amended, jurisdiction had been conferred on the Chairman, Federal Land Commission to revise even those cases which had already been decided under M L R 64. It was therefore urged that notices of suo motu revisions published in respect of the respondents under para. 29 of M L R 115 had been correctly issued and that the Peshawar High Court had no justification in holding the same as illegal and having been issued without lawful authority and thus restraining the appellants in Civil Appeal No. 115 of 1976 from reopening the question of the respondents' title pertaining to the disputed land.
22. ' This is the main argument of the learned counsel for the appellants in Civil Appeal No. 116 of 1976.
23. Moulvi Sirajul Haq learned counsel appearing for the Federal Land Commission etc. Appellants in Civil Appeal No. 115 of 1976 also adopts the same reasoning as his view respecting the interpretation of para. 29 of M L R 115 as amended is to the effect that it did confer power on the Federal Land Commission to reopen such cases which related to transactions past and closed or stood decided under M L R 64.
24. ' Mr. S.M. Zafar learned counsel for the respondents in both the appeals in reply submitted that para. 29 as amended only conferred power on the Federal Land Commission to revise any case or proceedings under M L R 115 or under repealed M L R 64 which were pending or in which a Commission or any other authority appointed under M L R 115 or under M L R 64 other than the Federal Land Commission constituted under para. 4-A had passed an order. The thrust of his argument is that revision is possible even under the amended para. 29 only of those cases in which orders had been passed by a Commission or an authority appointed under M L R 115 or under M L R
64. But in the instant case, it was submitted, the orders recognising the respondents as owners had not been passed by any such Commission or authority but by the Government itself and when such orders had been challenged by the tenants appellants before the High Court, the Government as well as the Land Commission which had been impleaded as parties took the stand that the aforesaid orders had been validly passed. Learned counsel submitted that this argument was taken note of by the learned Judges of the Peshawar High Court in para. 33 of the judgment which reads as follows: "There is yet another insurmountable difficulty for the respondents who assert jurisdiction in respondent No. 1 in pursuance of the amending Act, 1975. A reference to paragraph 29 as amended uptodate, will show that the Federal Government or a person authorised by it in that behalf, in this case Federal Land Commission, may on its own motion or otherwise call for the record of proceedings under the Land Reforms Regulation of 1972 or the repealed Regulation, which is pending or in which a Commission or any authority appointed under the Land Reforms Regulation or under the repealed Regulation, has passed an order, for the purpose of satisfying itself about its validity, and may pass such order as it may think. The language of the statute, as we read it, is quite clear and un-equivocal when it confers revisional jurisdiction and this jurisdiction is there if the order to be revised has been passed by the Commission, or an authority appointed under either of two Regulations. In the instant case the admitted position is and in this we are supported by various judgments brought on the record that the orders whereby the petitioners were not to be treated as Jagirdars but as owners were made by the Government of West Pakistan or one of its departments. That order was certainly not made by any Commission or any authority under the present or repealed Regulation. For the reasons we fail to understand how the revisional powers under para. 29 of the Land Reforms Regulation 1972 can be at all invoked in the circumstances of the present case."
25. ' It was further submitted that under the 3rd proviso to para 29, the record of any case or proceedings shall not be called on the application of any aggrieved party made after the expiration of 60 days from the date of such order or from the date of the enactment of the Land Reforms (Amendment) Act 1973, whichever is later, excluding the time requisite for obtaining a copy of such order. It was pointed out that the record in the instant case clearly indicates that the applications for reopening the case made by the appellants were barred by time. It was argued that suo motu powers of revision could not be exercised so as to help the appellants whose remedy was barred by limitation. It was therefore submitted that as is evident from para. 37 of the impugned judgment of the High Court, Writ Petition No. 98 of 1975 was dismissed also for this reason.
26. ' It was then submitted that the question of title was not covered by the provisions of M L R 115 and consequently it could not be determined by the Land Commission, since in such matters the jurisdiction lay only with the civil Courts, which had repeatedly decided in favour of the respondents. Reliance in this behalf was placed by the learned counsel on PLD 1968 Lah. 1145 (Muhammad Khizar Hayat Khan v. Chief Land Commissioner).
27. On a plain reading of para. 29 and after hearing learned counsel for the parties, in our opinion it is evident that para. 29 as amended has only enlarged the scope of revision in such cases where the order to be revised had been passed by a Commission or an authority which had been appointed only under either M L R 115 or the repealed M L R 64. But in the instant case the respondents had been accepted as owners by the Government of West Pakistan and thus their title to the disputed land had been acknowledged by the Government itself apart from the civil Courts, in their litigation, against the tenants-appellants. The order of recognition dated 16th April, 1959 made by the Government had not been passed by any authority or Commission appointed under the present or the repealed Regulation. Consequently the Federal Land Commission could not invoke the suo motu revisional powers under para. 29 of M L R 115 so far as the case of the respondents was concerned. When Qazi Abdur Rashid learned counsel for the appellants in Civil Appeal No. 116 of 1976 was confronted with this situation he could not help conceding that this was the only interpretation or construction of para. 29 of M L R 115 as amended. But at this stage he submitted that so far as gifts made by the respondents under M L R 64 were concerned these could be scrutinised by the Federal Land Commission. Again here Mr. S.M. Zafar, learned counsel for the respondents pointed out that in the order dated 28th January, 1975 passed by the 'Chairman, Federal Land Commission there was no reference to the scrutiny of all the gifts made by the owners under M L R 64. It was only in respect of the gifts made by Nawab Muhammad Saeed in favour of his son Salahuddin which were directed to be scrutinised in the aforesaid order. But that matter, learned counsel submitted, was still pending independently, before the Land Commission and it had not yet been decided. Qazi Abdur Rashid Advocate then submitted on behalf of his clients that the Land Commission was not giving the land surrendered by the respondents under M L R 64 to the tenants-appellants as required under the law. But then obviously that may be a dispute between the tenants and the Land Commission with which the land-owners i.e. Respondents can possibly have no concern.
28. Be that as it may, in the light of our conclusion to the effect that under para. 29 of M L R 115 as amended the power of suo motu revision could only be exercised in such a case or proceedings where the order to be revised had been passed by a Commission or an authority appointed under M L R 115 or under repealed M L R 64, and that in the instant case, since this was not the position, the judgment passed in Writ Petition No. 98 of 1975 was unexceptional. The result is that these appeals have no force and are accordingly dismissed with costs.