' MUNIR A. SHAIKH, J.---This judgment will also dispose of Writ Petition No,3076 of 1989 as common questions of law and facts are involved in both of them.
2. This Constitutional petition raises the question of legality of order dated 30-7-1989 passed by the Chairman, Federal Land Commission by which it has been directed that order dated 27-2-1978 passed by the Deputy Land Commissioner, Sahiwal should be implemented.
3. The dispute relates to Waqf land attached to Shrine of Baba Farid-udDin Ganj Shakar, Pakpattan Shull*. Under the Land Reforms Act, 1977, no person could own or possess land in excess of 8000 P.I.
Units. The provisions of this Act were also made applicable to such land which was Waqf or was subject-matter of Charitable Trust. The land attached to the shrine was admittedly in excess of the maximum limit/ceiling fixed under this Act.
4. Under section 7 of the said Act, any person possessing or owning land in excess of the maximum limit of 8000 P.I. Units was required to submit a declaration to the Land Reforms Authority and was also required to surrender the excess land of his own choice which on such surrender was to vest in the Government. It was an admitted fact that the authorities through Notification fixed a date before which such a declaration was to be submitted but the Auqaf Department which had taken over the management and control alongwith possession of this land under the Waqf Laws did not submit any declaration. As a consequence of which the provisions of subsection (5) of section 7 of the said Act became applicable under which an officer of the District concerned who was authorised by the Commission in this behalf either of his own motion or otherwise and after calling for such information and recording such evidence as he deemed necessary was authorised to determine if the land owned or possessed by such person was in excess of his entitlement under the Act and make an order to that effect.
4-A. Deputy Land Commissioner, Sahiwal who was so authorised by the Commission, took up the matter under this provision of the Act and after examining the record and hearing the petitioner held that the land possessed by the petitioner was in excess of its entitlement through order dated 27-2-1978. The legal consequence of such a declaration was that under subsection (2) of section 9 of the Act such excess land vested in the Government forthwith free of any encumbrance or charge and the defaulter was to be deemed to have forfeited the right and option given to him to surrender land of his choice under subsection (4) of section 7 of the Act. Despite this forfeiture of right of option, the Deputy Land Commissioner however gave opportunity to the petitioner to surrender excess land of his choice.
5. Feeling aggrieved, the petitioner filed Writ Petition No,1368 of 1978 before this Court to challenge the legality of order dated 27-2-1978. An interim order for maintenance of status quo was passed.
Simultaneously, on the administrative side the petitioner appears to have approached the Federal Government to intervene in the matter. Since the vires of the provisions of Land Reforms Laws to the extent of their applicability to Waqf properties had in the meantime being challenged before the Shariat Court on the ground of repugnancy to the Injunctions of Qur'an and Sunnah in Qazalbash Waqf case therefore, the Federal Government also passed an order for maintenance of status quo for awaiting the decision in the said case for which reason W.P. No,1368 of 1978 was withdrawn. It also appears that proposal was submitted to the Federal Government to exempt Waqf properties from the operation of Land Reforms Act, 1977 on the same lines as was done in the case of Livestock Farm in respect therewith an order was passed that since the matter was sub judice before the Supreme Court, the decision in the same should be awaited and further action would follow the judgment of the Court. The Federal Government clarified its previous order for maintenance of status quo by observing that if in any case Waqf/Trust Lands had not been resumed under the Land Reforms Law before 30-3-1980 it should not be resumed till the matter was finally decided by the Federal Government. It may be mentioned here that in the case in hand property by virtue of section 9(2) of the Act stood vested in the Government on 27-24978, therefore, there was no question of resumption of land in the present case after 30-3-1980 i,e, the date fixed by the Federal Government. The effect of this order was that the land already resumed or having already vested in the Government before 30-3-1980 was not affected.
6. The Appellate Shariat Bench of the Supreme Court decided Qazalbash Waqf case on 10-8-1989 and the judgment delivered in this case is reported as Qazalbash Waqf and others v. Chief Land Commissioner, Punjab, Lahore and others (PLD 1990 SC 99).
7. It was held that the provisions of Land Reforms Law so far as made applicable to Waqf properties were repugnant to the Injunctions of Qur'an and Sunnah and as required by the Constitution directed that these provisions of the said law would cease to be operative with effect from 23-3- 1990. It was further clarified that despite the declaration regarding repugnancy on the expiry of the date fixed, the self-executory provisions of the law would continue, having already taken effect.
8. Before proceeding further it may be pointed out that the private respondents who claim themselves to be the tenants over the land filed Writ Petition No,1500 of 1984 before this Court for disposal of excess land as determined by order dated 27-2-1978 in accordance with the law and the schemes in their favour. This writ petition was dismissed on the ground that the petitioners could not be given land at that stage, obviously for the reason that unless the excess land was separated from the land which was to be retained by the present petitioner, right of tenant, if any, could not be ascertained as only the tenants of such excess land could claim right, if any. The private respondents filed petition for Special Leave to Appeal No,956 of 1984 before the Supreme Court which was also dismissed holding that prior to the surrender of excess land the tenants could not lay any claim.
9. After judgment was delivered in Qazalbash case the matter was taken up by the Chairman, Federal Land Commission. The Chairman, Federal Land Commission passed the impugned order on 30-7-1989 for implementation of order dated 27-2-1978 which has been called in question by the petitioner in this Constitutional petition.
10. The main burden of argument presented by learned counsel for the petitioner in support of this petition was that since the petitioner has yet to exercise his choice regarding surrender of excess land and the excess land after surrender is to vest in the Government, therefore, the case of the petitioner is not hit by the mischief of expression "self-executory provisions" used in the Qazalbash case by the Appellate Shariat Bench of the Supreme Court. The fallacy of this argument lies in erroneous assumption as if the excess land is to vest in the Government on the exercise of choice regarding surrender of excess land and not prior thereto which argument cannot be accepted without doing violence to the express provisions of section 9(2) of Land Reforms Act, 1977 which is reproduced below in extenso for facility of reference:--
(2) Land determined under subsection (5) of section 7, to be in excess to the entitlement of a person shall vest forthwith in the Government free of any encumbrance or charge and the defaulter shall be deemed to have forfeited the right and option under section 4."
11. As has already been observed on the passing of order dated 27-2-1978 by the Deputy Land Commissioner under the provisions of subsection (5) of section 7 of the Act, the excess land forthwith vested in the Provincial Government and due to this characteristic of this provision of law it can safely be held that the same was certainly "self-executory provision" having taken effect long before 23-3-1990 the date fixed in Qazalbash case with effect from which the law was to cease to operate to the extent of repugnancy. Merely because further steps were yet to be taken to implement the "self-executory provisions" of the Act such as separation of excess land from the land to be retained by the petitioner within the permissible limits does not have the effect of rendering the said provision of law as also legal effect of order dated 27-2-1978 as non-self- executory or exclusion of the same from the purview of the said expression. This view finds support from judgments delivered by the Supreme Court in Civil Appeals Nos. 292 and 293 of 1976 in which identical questions were raised and it was held as under:- "Therefore, even if some of the appellants have yet not surrendered the excess land it would not make any difference for now it is a question of merely implementing the orders already passed by competent authorities. In the circumstances the appellants cannot take advantage of the judgment in the Qazalbash Waqf case."
' Yet in another case reported as The Chief Land Commissioner, Punjab, Lahore and another v. Ch. Atta Muhammad Bajwa and others (1991 SCM R 736) it was held as under:-- "The provision invoked against the appellants being a self-executory provision, does not await the decision of any authority or Court for having effect. It is only the interpretation, the exclusion or the limitation which can be decided upon by the Court and not the operation of law as such."
' A similar view was taken in a case reported as The Chairman, Federal Land Commission, Islamabad and another v. Akhtar Abbas (PLD 1989 SC 550), and the above rule laid down was reaffirmed.
12. Learned counsel for the petitioner faintly argued that in view of dismissal of Writ Petition No,1500 of 1984 filed by the tenants by this Court and also their petition for Special Leave to Appeal by the Supreme Court, the provisions of section 9(2) of the Act cannot be held to be self-executory as the excess land was held to be not available for utilization under the schemes framed under the Act.
We are afraid the argument is wholly untenable. Since the tenants rights if any were available against the land under their tenancy therefore, at that stage it was rightly held that till the separation of excess land from the other land which the present petitioner was to retain, none of the tenants could be given any rights qua any portion of land because only those tenants had rights if any who were tenants qua the land which was to be separated as excess land and the question regarding self-executory provision and its effect was neither directly nor substantially in issue nor the same was raised and determined finally. As has already been held by the Supreme Court C that merely because further act for surrender of excess land had yet to take place, the same did not have the effect of rendering the provisions as non-selfexecutory as such the Chairman, Federal Land Commission if had passed the order for implementation of order dated 27-2-1978 no illegality has been committed by him as such the same does not suffer from any jurisdictional defect.
13. For the foregoing reasons, the writ petition has no force which is accordingly dismissed with no order as to costs.