' This petition has been filed by Agha Abdul Rehman Khan and 12 others, under Article 199 of the Constitution of Pakistan (1973) in order to seek following reliefs:-- "that................ To make an order--
(a) directing the respondent to decide the application of the petitioners dated 13-5-1993 (Annexure J) and to incorporate the names of the petitioners as owners of the land in dispute in Dahar Khapanwala alias Bhootwala, Mouza Mauj Garh at Cholistan area in accordance with law;
(b) directing the respondent to earmark the land in question on the spot and .To refrain from making allotment of the said land in favour of any other person under any scheme; and
(c) granting to such other relief to the petitioners as this Hon'ble Court may deem fit in addition to the cost of the petition.
2. The facts, which form background of this petition, are; that one Muhammad Bakhsh Khan was a dedicated servant of Nawab of Bahawalpur. In recognition of his services, he made a gift of agricultural land measuring 27,275 Bighas situated in Dahar Khapanwala commonly known as Bootwala situated in the area of Mauj Garh/Cholistan. A "Farman" was issued in order to give effect to that gift on 4-12-1893. The concerned authorities were directed to incorporate the said gift in the relevant record. It was in 1993 when Cholistan Development Authority started to allot the area gifted to Muhammad Bakhsh Khan under some Scheme. Feeling concerned. The petitioners inspected the record, obtained a copy of 'Farman' dated 4-12-1893 and moved the Managing Director, Cholistan Development Authority/herein respondent for giving effect to the aforesaid 'Farman'. Pursuant to petitioners' application, the Managing Director, Cholistan Development Authority referred the matter to the Deputy Commissioner, Bahawalpur for verification of certified copy of 'Farman'. This happened vide order dated 6-6-1993. Consequently, the Deputy Commissioner, Bahawalpur forwarded the matter to the S.S.P., Bahawalpur for registration of a case against the petitioners as well as the officials of the Copying Agency who had given the copy of the `questioned Farman'. Resultantly a case was registered but the Investigating Agency had held that the officials of the Copying Agency were innocent. The petitioners, thereafter, approached the respondent for attesting the mutation in accordance with 'Farman' dated 4-12-1893. As the respondents did not pay any heed to the petitioners, so they had no option but to invoke the Constitutional jurisdiction of this Court.
3. The learned counsel for the petitioner, in support of this petition, raised following points: ' Firstly, that Bahawalpur State under Daud Potra Nawabs was a princely State, wherein Nawabs had undisputed and untrammelled power to dispose of the property of the State. ' According to the learned counsel, this being the position, the Ruler of Bahawalpur State was fully competent to gift property in dispute to Muhammad Bakhsh Khan, who was predecessor-in-interest of the petitioners and under the `Farman' dated 4-12-1893, the said donee had become the owner of donated property which now had devolved on petitioners as his legal heirs. Continuing, he contended that the respondent had no option but to incorporate the 'Farman' of Amir of Bahawalpur in the record of right of Revenue Estate Mauj Garh.
' Secondly, that the respondents had no business to sleep over the application of the petitioners and leave the matter in indefinite abeyance.
4. The learned counsel, appearing on behalf of the respondent, on the other hand, contended that Bahawalpur State, at the relevant time, was not autocracy, but was ruled by Muslim Rulers who were Amins of State and were subject to law of the land as Muslim Ruler. On this premises, it was contended that the Abbasid Rulers were not autocrats and had never dealt with the property of the State in imperious manner. Continuing, the learned counsel argued that Abbasid Rulers dealt with the affairs of the State through their Council of Ministers and had set up a welfare and egalitarian Society. On this principle, it was represented that 'Farman', relied upon by the petitioners, was simply spurious document and was of no lawful consequence. He further submitted that the petitioners had come to this Court with unclean hands and on the basis of framed document, so they were not entitled to any aid in Constitutional jurisdiction of this Court.
5. From the foregoing narrative of facts, and rival contentions of the parties, the sole question emerging for decision is "Whether Bahawalpur State, at the relevant time, was an absolute anarchy which was governed by autocratic Nawab?" Answer to this question is not free from difficulty and is to be gleened from pages of history commencing from its establishment to year 1903. No doubt Bahawalpur State owes its origin to Daud Potra, a branch of Abbasides, who came to Sindh with the fall of Abbasid's Caliphate in Egypt. In the first instance, they and Kalhora group of Abbaside had set up a State, in the Province of Sindh. As there grew dissention between two wings, Daud Potra family came to Bahawalpur and set up Bahawalpur State by the use of their mighty sword.
Bahawalpur State, in the beginning, comprised of small enclaves which were headed by Daud Potra Chiefs. These were welded into State by Nawab Muhammad Bahawal Khan-II. He was the first Nawab, who for the first time established a Mint at Bahawalpur in 1802. This newly-created State was subject to fluctuating fortunes. It suffered from internal conspiracies and faced onslaughts from right to left. On the rise of Sikh power, its existence was in danger, due to expected invasion of Raja Ranjit Singh. In such a situation Nawab Muhammad Bahawal Khan-III looked towards Britishers for help. It was in 1809, when the Treaty of Lahore was concluded. Between Raja Ranjit Singh and Britishers by which the former renounced his claim to the territory falling beyond river Satluj and so the boundaries of the State were secured. This, however, was achieved at the cost of State being put in tutelage of British-power whose paramouncy was acknowledged. Thereafter, under the Treaty of 1838 the State of Bahawalpur was ruled by Nawab after Nawabs. It was on 25- 3-1866 when Nawab Sir Sadiq Muhammad Khan-III died, leaving behind his heir who was only 4-1/2 years old. The vacuum was immediately filled by British power who set up an Agency to govern the State. This Rule of Agency commenced from 1866 and ended in 1879. Nawab became major and was installed as a Ruler. He was destined to rule the State for a further period of 10 years i,e, up to 1889. From the reading of the history of that time, it appears that Nawab, in that period, ruled the State with the Council of Ministers and remained under the control of British power under Articles 3 and 7 of the Treaty of 1833. This position continued till 15-8-1947 when the last Ruler of Bahawalpur His Highness Alhaj Sir Sadiq Muhammad Khan Abbasi-V, decided to accede to newly-created Muslim State of Pakistan and executed an instrument of its Accession under section 6 of Government of India Act, 1935. Several other supplementary instruments of Accession were executed thereafter, but mention may be made of an instrument executed by Amir of Bahawalpur and Governor-General of Pakistan dated 11-4-1952 whereby the Amir of Bahawalpur accepted for his State the Constitution of Pakistan and agreed to receive a privy purse of Rs,29,50,000 annually.
This instrument provided for matter relating to the properties, succession to personal right, privileges of Amir of Bahawalpur. It will be useful to reproduce it as under: ' Article IL--His Highness the Ameer shall be entitled to the full ownership, use and enjoyment of all the jewels, jewellery, ornaments, shares, securities and other private properties, movable as well as immovable, not being State properties, belonging to him on the date of this agreement.
2. His Highness the Ameer shall furnish to the Government of Pakistan within three months of the date of this Agreement lists of the movables and immovable property held by him as such private property.
3. If any dispute arises as to whether any item of property is the private property of His Highness or State property, it shall be decided by the Governor-General of Pakistan whose decision shall be final and binding on all concerned.
' Article. III.--His Highness the Ameer and the members of his family shall be entitled to all the personal privileges, dignities and titles enjoyed by them whether within or outside the territory of the State immediately before the date of this agreement.
' Article. IV.--The Government of Pakistan guarantees the succession according to law and custom of the State of Bahawalpur to the Gaddi of the State and to the personal rights, privileges, dignities and titles of His Highness the Ameer of Bahawalpur.
6. Before the formation of the one Unit Amir of Bahawalpur executed Bahawalpur Merger Agreement dated 17-12-1954 by which the accession of State of Bahawalpur to the Dominion of Pakistan and its further merger in the proposed one unit was agreed. With the break-up of One Unit/West Pakistan in 1971 the State of Bahawalpur became the part of Province of Punjab.
7. The abovementioned history of the Rise of Daud-Potra Power, Administrative System of the Bahawalpur State were outlined and repeated with meticulous accuracy in gazetteers of Bahawalpur State pertaining to years 1904, 1944, 1945, 1946 and 1947. In order to have insight of legal framework of the State at relevant time, I find it necessary to refer to number of pages from Punjab State Gazetteer (Vol. XXXVI-A). It was compiled and published under the Authority of the Government of Punjab in year 1904. It may be remembered that Bahawalpur State, at that time, was attached to Phulkian Agency which was under the Administrative control of Government of Punjab.
' This document is of undoubted authenticity. It details the boundaries of the State, history of rise of Daud Potra power, Administrative System of the State. The relevant paragraphs of this document are as follows: ' Chapter III--Administrative: ' Section A. Administrative System and Divisions.-The Bahawalpur State is an independent feudatory Native State which first entered into an alliance with the British ' Government of India early in the 19th Century, its relation with the paramount British Power being governed by the Treaties of 21st of February, 1833 and of October 5, 1838, reproduced in extenso in Volume 9 of Aitchison's Treaties. The State pays no tribute or Nazrana to the British Government. It is under the political control of the Punjab Government through the Political Agent for the Phulkian States and Bahawalpur. Under Articles 3 of the Treaty of 1833 and 7 of that of 1838,-- Nawab of Bahawalpur exercises the full powers of a ruling chief over his subjects.
' Section-B Civil and Criminal Justice.--Prior to the Agency period i,e, before 1866, the laws in force in the State were partly secular. Muhammadan civil suits were referred to the Qazis as were disputes regarding marriages, divorce, dower (Mahr), inheritance, and c., but criminal offenders, whether Hindu or Muhammadan, were punished by the Kardars and Naibs, or, if their offence was treason against the State, by the Nawab himself. Hindu suits relating to Dharam Shastra (or Hindu Law) and questions of inheritance, partition, adoption, legacy, Stridhana (widow's share) and c., were referred to the Brahamans or to the Mukhis (leading men) of the towns who were always nominated by the Nawab. The Criminal law was not codified and no hard and fast rules existed regulating the punishment for any particular crime except theft or burglary for which the convict (whether Hindu or Muslim) had his hand amputated under the Muhammadan Law, or was required to pay a heavy fine (Chatti). In the town most of the Magisterial powers were invested in the Kotwals. In the Mufassil the Kardars were given extensive Magisterial powers which enabled them to impose unlimited fines with imprisonment in default and even capital punishment. The administration of justice in the State before the establishment of the Agency is thus described by Colonel Minchin:-- ' Under the Late Nawab's rule, all Kardars and their Naibs, the Kotwals, and even Piadas on Rs, 2 a month, had power to investigate any offences, and inflict fines to any amount, and in default of payment to imprison for an unlimited period. No allowance was made to prisoners who had to maintain themselves by begging; murder cases were tried by Qazis and Maulvis, who only passed a sentence of Qisas or death on the application of the heirs of the deceased, but generally the murderers managed to escape through the connivance of the guard. When any person of position was tried, the Qazis dared not inflict punishment; and any Fatwa could be obtained by payment of a sufficient Nazrana. On first taking charge of the State I endeavoured to introduce the system formerly in force in Bengal, as laid down in Beaufort's Digest, for deciding cases with the aid of Qazi, or Law Officer, who would give a Fatwa, or finding, and state the Muhammadan Law on the subject.
Almost the first trial I held under this procedure, a Hindu was charged with blasphemy, for having made use of certain improper expressions regarding the Muhammadan faith, in a dispute with a Muhammadan; and on calling on the Qazi for his Fatwa, he said the only punishment for such an offence was death. Great discretionary powers were obliged to be granted in petty offences, which resulted in each Magistrate's doing what was right in his own eyes, with the most astounding differences of opinion on every subject. One officer made it a point of convicting the complainant; and the appeals were so numerous and complaints everywhere so rife, that I felt that the only thing left was to introduce a separate department, whose whole time should be devoted to judicial matters. Here, as in the Punjab, the Revenue Officers had been entrusted with judicial powers, but the Revenue duties were so important that they were obliged to neglect judicial work, with the above result.'
' In introducing a .New department I considered that it would be impossible for me to prepare a code of regulations for their guidance, that could possibly be so satisfactory as the codes laid down by Government for the whole of India, which were all ready to our hand, and which were in force in the adjoining districts, where the people of the State had relations and friends, and large business connections; and as the newly appointed officers had ample leisure at their disposal, it could not be better occupied than in studying the codes, in which everything had been laid down in the clearest manner. The result has been most satisfactory, and I feel assured that the Nawab when he comes of age will be only too glad to carry on this same system, which is precisely similar to the system pursued in the Native States of Patiala and Kapurthala'...."
' The old system led to such glaring abuses and confusion that on the establishment of the agency the civil and criminal laws in force in British territory were introduced by Colonel Minchin. This and other changes in the administration elicited the following remarks from the Secretary of State for India in February 1872:- "The affairs of the Bahawalpur State should be so conducted as to involve no needless break in the continuity of the administration when handed over to its future native rulers, and (he) fears that there is a strong tendency to assimilate not the substance only, but forms of administration too closely to these which prevail in districts which have all along been under our direct Government and in which there is of course no probability of any change occurring.'
' To this Major Minchin, Political Agent, replied in the following words:-- `We have divided the administration into two distinct branches, the judicial and executive, which is nowhere enforced in British India. The Indian Penal, Procedure and Civil Codes have been introduced because of the immense advantage gained to the Administration by having written Laws and Regulations which can be applied to all classes and where the duties of each officer are clearly defined. The judicial system has been entirely carried out through Native Agency and is partly medelled on the Tranvancore State in the Madras Presidency.'
' A list given below shows the Acts and. Regulations enforced in the State. Any new legislative measure or bill proposed to be introduced into the State is recommended by the Adalati, Revenue, Minister or a Member of the Council representing the particular department concerned and laid before the Council and, if approved by it, is submitted to the Nawab for his final assent."
7. From the foregoing study, the following position emerges:
(a) That Bahawalpur State, at the relevant time, was under the paramount power of Britishers and was attached to Phulkian Agency. It had an area of 15,918 sqr. Miles, which was divisible into three parts: First part was the expansion of great Indian Desert known as Rohi/Cholistan. Second part was also contiguous to first part and was in said conditions. Third part was cultivable and was in the possession of the State, dwellers of the State and Abbaside Rulers. The first and the second part belonged to the State. These were neither cultivable nor were measured/settled through any Settlement operations. No record of right of these parts was prepared, and was kept up to the creation of Pakistan.
(b) The Rulers of Bahawalpur State belonged to house of Hazrat Abbas (God be happy with him) who was uncle of Holy Prophet (peace be upon him). In the moment of adversity they had come to India to try their luck and establish the supremacy of message of Islam. It becomes further clear that they have never claimed prerogative power of monarchs and had always subjected themselves to the law of land; they operated through the Council of Ministers. They had high sense of governance of State. They had instituted trichotomy in their administration. The Council of Ministers wielded the power of executive as well as legislature while the task of applying the law had been allocated to judiciary which was totally free and independent. In order to lay down a clear demarcation between State and Rulers, they had made an arrangement to deal with their properties--through separate Ministry known as Minister of Tasrifat which was aided by number of officials. From the above, it becomes clear to me that the Rule of Nawab, at that time, was clearly of Constitutional monarchy and not that of an absolute autocracy, as suggested by the learned counsel for petitioners. Their private properties/lands were known as domain land, so as to clearly distinguish them from the State land. From the above, it clearly follows that Nawab of Bahawalpur had no power to deal with the State property but he always dealt with the State property through legal mechanism framed by the Council of Ministers and sanctioned by Nawabs. State, in short, was patterned on the basis of Doctrine of due process of law built by statutes and established practices. -
(c) That the Bahawalpur State, at the relevant time, was under the control of British power which in a piecemeal manner was introducing the element of parliamentary democratic practices in India, including Bahawalpur State.
(d) In order to administer and in order to develop Rohi and Cholistan area, Cholistan Development Department was set up in 1946 with the object of developing the 13,000 sqr. Miles of Cholistan or Barani area by the conservation and improvement of water supply. Under the Scheme a series Tobas were to be built during the next 20 years at various centres. Reservoir of water was built at Channan Pir and excavation work was undertaken at Dhori and San. Arrangements were made to augment the supply of rain water in the Channan Pir Reservoir by adding the surplus water in 3L distributory. In addition to a large number of old and partly disused Tobas were improved. It was hoped that these measures would encourage the present shifting population to become localised, and ultimately Ryotwari rights would be granted to cultivators. The future plans of the department include the allotment of Barani lands to Cholistanis opening up dry station farms and teaching the inhabitants methods of Barani cultivation, improvement of cottage, industries especially woollen textile weaving, increased production and marketing of Khar, increased afforestation and the setting up poultry farming and,milk industries (see page 52 of Bahawalpur State, Gazetteer, 1949- 50). This area was entrusted to Cholistan Development Authority with the promulgation of said Authority in 1976.
8. Applying the above, to the facts and circumstances of this case I have no hesitation in coming to the conclusion that Nawab of Bahawalpur, at the relevant time had no power, whatsoever, to make gift of property in dispute, which was essentially part of Cholistan which was Crown unmeasured land to Muhammad Bakhsh Khan. The 'Farman' allegedly produced by the petitioners seems to be clearly a spurious and out of time with operational legal order of time.
9. There is yet another aspect of the case. The West Pakistan Land Reforms Regulation, 1959 was promulgated on 3rd March, 1959. Para. 8 of this Regulation enacted that no person shall at any time own or in any capacity possess land in excess of five hundred acres of irrigated land or one thousand acres of unirrigated land, or irrigated and unirrigated land the aggregate area of which exceeds five hundred acres of irrigated land, one acre of irrigated land being reckoned as equivalent to two acres of unirrigated land and any reference in this Regulation to an acre of irrigated land shall be construed accordingly. All the owners of the land who were in possession of agriculture land in excess of the above ceiling, were required to file declaration. It is not in dispute that the petitioners had not filed any such declaration as required by para. 11 of West Pakistan Land Reforms Regulation, 1964 and then in 1972 or under the Land Reforms Act, 1977. This aspect of the case fully demolishes factual claim of the petitioners. Had the original donee or his successors- ininterest been in possession of the land gifted to them, they would have submitted their declaration under the aforenoted Land Reforms Laws. Cholistan Development Authority was constituted under Cholistan Development Act, 1976 which was promulgated on 21-7-1976. Even these petitioners did not lay any requisite information to the aforesaid authority. From the above it clearly follows that the petitioners have come to this Court with claim which seems to be totally unfounded and framed on spurious documents.
10. As a result of above discussion this Constitution petition is found to be totally devoid of merit and is accordingly dismissed in limine. While parting with this order 1 find it necessary to note that Cholistan, which is a very vast tract of Crown waste land and which has great potential of being cultivated, had become the target of covetous eye and persons tainted with corrupt behaviour and deviational tendencies. Seen from this perspective I am inclined to direct the Commissioner, Bahawalpur Division, who is incharge of Mohafizkhana of Bahawalpur to constitute a Committee in order to probe in the affairs of Mohafiz-khana and initiate action against the delinquent officials who were instrumental in keeping the framed and spurious 'Farman' dated 4-12-1893 in Mohafiz- khana and might become such instrument in future. He shall submit a report of his inquiry to the Deputy Registrar (Judi.) of the Lahbre High Court, Bahawalpur Bench, Bahawalpur within a period of three months.