This order will dispose of Reference No.9888/HVC, dated 13-12-1994 of the Deputy Land Commissioner; Dera Ghazi Khan 'to the Chief Land Commissioner, Punjab, based on former's order dated 4-12-1994, on the petition of Begum Shehla Leghari widow of Sir Nawab Muhammad Jamal Khan Leghari resident of 17-Bathview Apartments, Khiyaban-e-Jami, K.D.A. Scheme No.5, Karachi, for restitution of resumed land in Chak Rodi and Chak Bhurgara of Dera Ghazi Khan District,- in the light of judgment of the Shariat Appellate Bench, Supreme Court of Pakistan, . Reported as PLD 1990 SC 99 Qazalbash Waqf and others v. Chief Land Commissioner, Punjab, Lahore and others.
2. The facts are that Begum Shehla Leghari, petitioner, filed application before the Deputy Land Commissioner, Dera Ghazi Khan, for restitution of area of 11492 Kanals, 19 Marlas comprising Khata No. 128 of Chak Rodi and area of 11805 Kanals, 10 Marlas comprising Khata No.239 of Chak Bb.Urgara in Dera Ghazi Khan District, resumed from her under the Land Reforms, which had never been distributed amongst eligible landless tenants or small landowners. She based her aforesaid request on the judgment/order of the Shariat Appellant Bench, Supreme Court of Pakistan, reported as PLD 1990 SC 99 Qazalbash Waqf and others v. Chief Land Commissioner, Punjab, Lahore and others. The Deputy Land Commissioner, Dera Ghazi Khan, by his order dated 4-12-1994, decided to refer the matter to the Chief Land Commissioner, Punjab, observing: "In view of above discussion mere resumption of land without its further distribution was neither the purpose of Land Reforms nor could it be termed as 'purpose served' invoking any past protection.
Moreover, now that in view of law laid down by Supreme Court of Pakistan the Land Reforms Laws have ceased to exist so the resumed land which had not yet been further distributed cannot be distributed any more. It is, therefore, that the petitioner asserts her right to get it back because she did not 'gift' it to the State.
The representative of the State argued that the said ruling of Supreme Court of Pakistan has conferred protection to the past transactions whose purpose had been served. He also pointed out that as far as further distribution is concerned, the higher authorities still give directions that the resumed land should be distributed. He also contended that .All cultivable land was distributed long ago the reason that the suit land is still in the name of State is that it was/is barren. However, the protection conferred upon these Laws is limited to the transactions whose purpose was served.
The central idea of Land Reforms was not mere resumption of land in the name of State, but the more desired part of it was to further distribute it amongst the deprived poor. In this case the land stood transferred to the State for decades. It was never further distributed to the landless/deprived.
So the purpose of resumption could not possibly be termed as 'served'. Therefore, I believe that contention of the petitioner is fully based upon principle of sound reasoning and religious spirit. The petitioner is, to my mind, entitled to get back the suit land. However, the representative of State still contended on the grounds that the very resumption order was passed by the Deputy Land Commissioner and it cannot be reviewed at such a belated stage, because review can only be made by the Chief Land Commissioner, Punjab, Lahore. The other objection was that the petitioner has already received the price compensation while surrendering the land in the shape of Bonds.
There is lot of substance in his contention. He pointed out that in case of Mauza Rodi, the petitioner did receive compensation. Therefore, the soundness of the contention of the petitioner had also become tainted Moreover, since this case involves a policy decision having far-reaching effects and review powers at the moment lie with Chief Land Commissioner, Punjab, Lahore, therefore, the matter has to be referred and got ratified by that forum before its final implementation."
The Deputy Land Commissioner, Dera Ghazi Khan, with his memorandum No.9888/HVC, dated 13- 12-1994, addressed to the Chief Land Commissioner, Punjab, sent a copy of his aforementioned order dated 4-12-1994, for information and further necessary action by the Chief Land Commissioner. Hence these proceedings.
3. I have heard the learned counsel for the petitioner. The counsel for the petitioner prayed that the case be forwarded to the Federal Land Commission, for formulation of policy for restoration of such unallotted resumed lands to former owners for whom these were resumed under the Land Reforms.
4. I find that the application moved by the petitioner before the Deputy Land Commissioner, Dera Ghazi Khan, for restitution of unallotted resumed land to her, was not maintainable under the law. - The order dated 4-12-1994 of the Deputy Land Commissioner, Dera Ghazi Khan, appears to have been passed in oblivion of the interpretation of the provisions of Article 203-D(3)(b) etc. Under Chapter 3-A of the Constitution, by the Supreme Court of Pakistan, in the cases reported as 1987 SCM R 1206 Muhammad Masood Khan Bhatti v. Mst. Ghulam Fatima and PLD 1988 SC 287, Sardar Ali and others v. Muhammad Ali and others, and judgments of the Supreme Court of Pakistan in certain cases delivered in the context of judgment of the Shariat Appellate Bench, Supreme Court of Pakistan, in Qazalbash Waqf's case (PLD 1990 SC 99). In the authority reported as 1987 SCM R 1206 it was held that the jurisdiction enjoyed under Article 203-D of the Constitution cannot be said to be declaratory in the traditional sense; and that the express limiting words of sub-clause (b) of clause
(3) of Article 203-D leave no scope for a retrospective construction, oc of giving them effect to matters adjudicated before that date. In the authority reported as PLD 1988 SC 287 it was held that where a pre-emption decree had been passed in favour of the plaintiff on the basis of pre- emption law repugnant to Injunctions of Islam, before 31-7-1986 (the date specified under Article 203-D(3)(b) of the Constitution when the judgment of the Shartat Appellate Bench, Supreme Court of Pakistan, in the case reported as PLD 1986 SC 360---Government of N.-W.F.P. v. Malik Said Kamal Shah, was to take effect) and thus right in favour of the plaintiff had been created before 31-7-1986, the same repugnant pre-emption law would continue to govern the case up to the Supreme Court and the plaintiff would be entitled accordingly to defend the decree. In the authority reported as 1991 SCM R 736---The Chief Land Commissioner, Punjab, Lahore and another v. Ch. Atta Muhammad Balwa and others, after considering the judgment of the Shariat Appellate Bench, Supreme Court of Pakistan in Qazalbash Waqf's case, Mr. Justice Shafiur Rahman observed: The decision of the Shariat Appellate Bench of this Court in the case of Qazilbash Waqf will not directly affect the adjudication in this case because the Court's order referred to itself in paragraph 7 made the following observation:--- 'The operation of the self-executory provisions of the Regulation mid the Act, and the provisions ancillary thereto shall not in any manner be affected by this decision till the aforesaid provisions cease to have effect i.e. 23-3-1990.'
The provisions 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 limitations which can be decided upon by the Court and not the operation of law as such. "
The Supreme Court of Pakistan had also considered the authority reported as PLD 1990 SC 99 while delivering judgment dated 10-7-1991 in Civil Appeals Nos. 292 and 293 of 1976, 139, 847, 848 of 1984 and 369 of 1988 (Muhammad Jahir Shah etc. v. Federal Land Commission etc.) and held as under: -- "It is to be noted that by the force of paragraph 7 of the Regulation itself all gifts, leaving aside those which were expressly saved, became void. The declarations submitted by the donors already stand scrutinized and the lands covered by the gifts have been treated as part of their holdings.
Therefore, even if some of the appellants have not yet 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."
The land which was the subject-matter of application of Begum Shehla Leghari, petitioner, had vested in the Provincial Government under the self-executory provisions of the Land Reforms Law and resumed long before 23-3-1990. It being a past and closed transaction was not affected by the, judgment of the Shariat Appellate Bench, Supreme Court of Pakistan, in Qazalbash Waqf case.
Therefore, there was hardly any occasion for referring the matter to the Chief Land Commissioner, Punjab and the Deputy Land Commissioner, Dera Ghazi Khan, erred in law in passing his order dated 4-12-1994 for referring the matter to the Chief Land Commissioner, Punjab, for orders.
5. Resultantly the request of the petitioner for restitution of the impugned resumed land to her is rejected, as being devoid of force. The petitioner may, if she so desires, send her suggestions to the Federal Land Commission/Federal Government, regarding further legislation by the Federal Legislature in the context of judgment of the Shariat Appellate Bench, Supreme Court of Pakistan, in Qazalbash Waqf case.