1. AMIR-UL-MULK MENGAL, J. ---By this petition filed under Art. 199 of the Constitution of Islamic Republic of Pakistan, 1973 (hereinafter referred to as the Constitution) the petitioners have challenged impugned orders passed by respondent No.6 i.e. Land Commissioner, Multan Division and all other proceedings and actions taken by respondents against the petitioners and their predecessors-in-interest under M.L.R. 115 in respect of their lands in Tehsil and District Barkhan.
2. Pre-admission notice was given to the respondents on 13-6-1995. Learned Advocate-General, Baluchistan appeared on 27-6-1995 and informed that he would be making appearance on behalf of Chief Land Commissioner, Punjab. On the said date representative of Chief Land Commissioner, Punjab Mr. Abdul Waheed was also present. The matter was admitted for regular hearing and comments were filed by Baluchistan Land Commission, Quetta through its Secretary, Chief Land Commissioner, Baluchistan and Board of Revenue, Baluchistan, Deputy Land Commissioner, Barkhan also filed his comments. Remaining official respondents did not file any comments. The petitioner's counsel filed a rejoinder .To the comments and ultimately the matter was fixed for regular hearing.
3. Brief facts for filing of the Constitutional petition, if put succinctly, are that the petitioners were Aala-Maliks as well as. Adna Maliks of the lands situated in Tehsil and District Barkhan (previously Loralai District of Baluchistan) in their own names and in the names of their predecessors-in--- interest. When M.L.R. 115 of 1972, known as the Land Reforms Regulation, 1972 was promulgated, Land Commissioner, Multan Division at Multan passed orders of resumption of lands under M. L. R. 115, the detail whereof is as under:--- S.No.Name Area resumed in Acres and PI Units.
4. Acres P. I. Units
1. Sardar Muhammad Jaffar Khan Leghari.670.612 4602 2.Sardar Muhammad Umer Khan Leghari.670.612 4602 3.Sardar Muhammad Tariq Khan Leghari.670.612 4602 4.Sardar Muhammad Jamil Khan Leghari.670.612 4602 5.Begum Iris Fatima Leghari 670.612 4602 6.Begum Affifa Mamdot 3852.382 26323.68
7. Begum Asmat Jan 1292.23 8943.87 8.Sardar Farooq Ahmed Khan Leghari 13961.91 95855.102 9.Mst. Sohelia Begum 1509.35 12421.56 10.Mst. Farida Begum 1509.35 12421.56 11.Mst. Najma Begum 1509.35 12421.56 12.Sardar Mansoor Ahmed Khan Leghari1701.90 12168.92 13.Sardar Maqsood Ahmed Khan Leghari1310.86 8883.47 14.Sardar Sultan Masood Khan Leghari 879.47 6204.62 It is worth to point out here that since petitioners owned and possessed lands both in the Province of Punjab and in the Province of Baluchistan and that they are permanent residents of Dera Ghazi Khan, the Province of Punjab, therefore, they filed declarations there and respondent No.6 proceeded under M.L.R. 115 of 1972 and passed orders from time to time for the resumption of the said lands. It is further revealed from the record that late Sardar Atta Muhammad Khan. Leghari predecessor-in-interest of the petitioners Nos. 1 to 5 owned in his name land measuring 5066.65 acres equal to 32109.55 P.I.U. Out of which land measuring 5038.192 acres situated in Barkhan was resumed by orders dated 23-7-1974 passed by the Deputy Land Commissioner, D.G. Khan. Similarly late Sardar Muhammad Khan Leghari predecessor- in-interest of petitioners Nos. 8 to 11 also owned land and late Sardar Mehmood Ahmed Khan Leghari predecessor-in-interest of petitioners numbers 12 to 14 owned land in Tehsil and District Barkhan in their own names which have devolved on the petitioners respectively as legal heirs under the Muhammadan Law.
5. The Deputy Land Commissioner, D.G. Khan respondent No.6 passed orders from time to time for the resumption of the lands of the petitioners and their predecessor-in-interest situated in Tehsil and District Barkhan. These orders were passed between the years 1972 and 1989.
6. It is pertinent to point out that the petitioners and their predecessors-in---interest claimed to be treated as full owners and Adna Maliks of lands in District Barkhan on the basis of the proprietary rights which they have been enjoying from times immemorial. It appears from the record that as far back as in 1927 the predecessors-in-interest of the petitioners entered into an agreement with the then British Government of Baluchistan whereby they agreed to hand over the possession of a portion of their lands known as Bairun-e-Burjiyat' to the Government of British Baluchistan as Adna Maliks but retained their proprietary rights as Ala-Maliks, subject to the consideration as follows:---
(i) Four hundred tnaunds of wheat shall be paid annually to us, our heirs, reversioners and assignees, in perpetuity as a compensatory Jagii from the revenues of the Barkhan Tehsil in return for the inferior proprietorship rights hereby surrendered in respect of the 12000 acres of land referred to above. In view, however, of the special circumstances underlying this assignment of land revenue and the fact, that we Sardars are not residents of Baluchistan, no service shall be required of us as a conditions of the grant.
(ii) In the Berun-e-Barjiyat tracts, land revenue at the rate of one-fifth of the gross produce shall be assessed and collected entirely by official agencies. We shall, however, have the option of being represented at the time that crops are appraised.
(iii) Out of the land revenue thus collected under the second paragraph above, we the Leghari Sardars shall receive from Government, in recognition and consideration of our proportion of proprietorship rights (Ala Milkyat), a fixed proportion of one-third share, either in cash or kind, according to our option. We agree promptly to take delivery of this share at the threshing floors or in such other manner as we may arrange with the consent of the District Officer. We shall have no right to demand more than this share or to interfere in any way with the revenue collections or with the cultivators concerned. The opinion in regard to the taking of revenue in cash or kind shall equally apply in the event at any future date, of a cash assessment of land revenue being fixed in this tract as a result of settlement operations' or otherwise.
(iv) We shall retain all such Lambardari rights on the lands in question as we have possessed in the past, and subject to the approval of the Political Agent, Loralai, we may nominate Sarbarahs from such of the respectable tenants as occupy the lands in question to act on our behalf. The number of such Sarbarah Lambardars will be fixed by the Political Agent, Loralai.
(v) Only occupancy tenants and those who are recognised as inferior proprietors shall be permitted to transfer their rights and then only inter se always provided that we the Leghari Sardars shall maintain our superior right of pre-emption.
(vi) The political Agent, Loralai, will assist us the Leghari Sardars in the collection of any outstanding advances now in the hands of tenants or ex-tenants resident in Baluchistan, in regard to which we are able by customary law or assent to establish a claim.
(vii) This agreement to come into full force from the Rabi Harvest of 1928, but we Sardars will be given one hundred maunds of wheat as Jagir for the Kharif Harvest of 1927, plus our one-third share of such produce as may be raised according to the terms of the third paragraph above."
7. Before dilating upon the Constitutional points raised, it is thought expedient to mention here that an amendment was made in the Land Reforms Regulation, 1972 (MLR 115) by an Act known as Land Reforms Amendment Act, 1976 (Act No.XLVIII/1976). We shall reproduce para. 13(3) as amended in a relevant para. Of the judgment. However, the amendment was made, according to petitioners' counsel, only in respect of lands belonging to Leghari declarants, of District Barkhan, at the instance of Chief Land Commissioner, Baluchistan. All actions taken by Land Reforms Authorities in respect of lands situated in District Barkhan, were made ineffective by this amendment, it was argued.
8. With this background the petitioners have invoked Constitutional jurisdiction of this Court seeking a declaration as mentioned in the preceding paras.
9. We heard M/s. Khawaja Ahmed Tariq Rahim and Mr. Faqir Muhammad Khokhar for petitioners assisted by Mr. Muhammad Abbas Mirza, Advocate. Ch. Ejaz Yousaf learned Additional Advocate- General, Baluchistan on behalf of official respondents. Deputy Land Commissioners, Dera Ghazi Khan through his representative Muhammad Masood Khalid on behalf of Commissioner, Multan and representatives of respondents Nos.5 and 6.
10. At the very out set we enquired from the petitioners counsel how this Court has territorial jurisdiction into the matter as the impugned orders had been passed by Deputy Land Commissioner, Dera Ghazi Khan within the jurisdiction of Lahore High Court. This was an Office Objection, in reply whereof the petitioners' counsel admitted that the subject-matter pertains to lands situated in Barkhan which is a District in the Province of Baluchistan. It was further contended that proposed action of resumption of lands shall have to be taken by the Deputy Land Commissioner, Barkhan, therefore, the cause of action has accrued within the jurisdiction of this Court.
11. Another limb of argument was that the orders passed or action taken by Deputy Land Commissioner, Dera Ghazi Khan or Land Reforms Officers have, in fact been nullified by Amending Act of 1976 and subsequent action was initiated by Chief Land Commissioner, Baluchistan, therefore, it is the Baluchistan High Court which shall have territorial jurisdiction into the matter.
12. We heard learned Additional Advocate-General, Baluchistan, who did not controvert this legal proposition and wanted to argue the petition on merits.
13. There is no cavil that the lands, subject-matter of the petition, are situated in District Barkhan, Province of Baluchistan and after Amending Act of 1976 fresh action had been initiated by CLC Baluchistan, therefore, this Court has jurisdiction to decide the lis, which otherwise involves intricate legal questions. Moreover, Additional Advocate- General, Baluchistan did not challenge jurisdiction of this Court, on this count. The question of territorial jurisdiction is answered accordingly.
14. Another important legal aspect was of laches, which though not specially raised before us, but which was otherwise pertinent, It was in such special circumstances as regards the lands in question that the Chief Land Commissioner, Baluchistan initiated proceedings by issuing an order in 1976 that these lands would be covered under the Amending Act of 1976 calling for action in accordance with the provisions of said Act. The learned counsel therefore, argued that cases pertaining to these lands were deemed to be pending and there is no likelihood or slightest apprehension that orders of this Court as regards lands in dispute having got a special nature being covered by Amended Law of 1976 shall have any bearing elsewhere on the past and closed transactions under M.L.R. 115 or orders made or action taken thereunder.
15. A fortiori it looked as if the petition is .Hit by laches, but considering the arguments of the petitioners' counsel it becomes clear that after the amendment made in para. 13(3) of Land Reforms Regulation in 1976 and till the said law lost its efficacy in 1993 after dismissals of review petition filed by Government of Pakistan, there was no substantial change or alteration in the nature of lands in dispute, nor any action was taken in pursuance of orders passed by either Deputy Land Commissioner, Dera Ghazi Khan or Commissioner, Multan. From perusal of Record of Rights, it becomes crystal clear that entries therein remained intact with no change or alteration whatsoever either in favour of the Government or Land Commission of Pakistan. Thus, from 1976 when amendment was made in para. 13(3) till 1993 when finally review petition of Government of Pakistan was dismissed by the Supreme Court of Pakistan, the respondents failed to take action under Amended Law as regards petitioners' lands, thus their cases remained pending.
16. It has been consistently held by the superior Courts that laches is not delay's simpliciter but it involves important principles for non-suiting the petitioners and these are: (i) acquiescence on the petitioner's part and (ii) that any change of position that has occurred on the defendants' part as held in 1982 SCMR 913.
17. As stated hereinabove in the case in hand no action whatsoever has been taken by the Land Reforms Tribunals after Amending Act of 1976, therefore, the delay has not bestowed upon Government any right whatsoever the self---executing provision of the Act apart. In this view of the matter we are fortified by 1984 SCMR 940. Had entries in the Record of Rights been changed in pursuance of amendment in para. 13(3) or any overt act done in favour of the Government in consequence of orders passed or the Government had gained any benefit, then, of course question of laches would have been very important, but from perusal of record it appears that no change whatsoever has been made in favour of the Government nor any action, beneficial to the respondent Government, has been taken, therefore, the case of the petitioners is not hit by laches on mere ground that the matter could not be finalised by Land Reforms Authorities during a period of about 18 years. Reliance if any may be placed on NLR 1980 Peshawar 100 and 1980 CLC (Karachi)
18. 974.
19. Moreover, after when the Amending Act of 1976 came into force by dint of which excess lands were declared not to vest in the Government but after adjudication shall revert to the Adna Maliks, the same remained pending. Thus, it was a continuing wrong, as such the cause of action arose continuously and' objection as to laches in the circumstances cannot be held valid. This view is supported by PLD 1970 Lahore 569.
20. Lastly neither respondents nor Additional Advocate-General raised any objection the maintainability of the petition on the ground of laches. We are, therefore, of the considered view that petition cannot be dismissed on the ground of laches.
21. We had made a passing-bye reference in the preceding paras. About amendment in para. 13(3) of Land Reforms Regulation and now we proceed to determine the effect of such amendment, particularly with regard to cases already cited under the Land Reforms Regulation, in respect of lands falling in para. 13(3) of the Regulation.
22. There appears to be a ring of truth in the arguments of petitioners' counsel that amendment in para. 13(3) of the Regulation has been initiated mainly for lands in dispute as is evident from the order of the CLC, Baluchistan. In fact this amendment was recommended by Office of CLC, Baluchistan. Para.2 of Annexure ' C' read as under:--- "This matter was referred to the Federal Land Commission and on the recommendations of this Office, paragraph 13(3) of the Land Reforms Regulation, 1972 has been amended through the Land Reforms Amendment Ordinance, 1976, issued by the President of Pakistan and published in the Extraordinary Gazette of Pakistan of May 19, 1976.: The President of Pakistan was pleased to substitute sub-para. (3) of para. 13 by Land Reforms Amendment Act of 1976, which reads as under:--- "Where any person is in possession of, or is holding, land in excess of the area permissible for retention under Part III, so much of such excess land as is in his possession as a lease or mortgagee or is held by him as the landlord of an occupancy tenant or a Muqarraridar or as an Ala Malik shall not vest in Government but shall, subject to the other provisions of this Regulation, revert to the lessor, mortgagor, occupancy tenant, Muqarraridar or Adna Malik, as the case may be, and shall be deemed to have so reverted at the commencement of this Regulation. "
23. From perusal of this amendment it appears that the Legislature thought it expedient to exclude only such lands as mentioned in para. 13(3) (and no other) from operation of para. 18 by which excess lands would vest absolutely in the Government under Part III read with para. 18 of Land Reforms Regulation, free from any encumbrances or charge and without payment of any compensation. It was further laid down that, subject to other provisions, such lands revert to the lessor, mortgagor, occupancy tenant, Muqarraridar or Adna Maliks as the case may be and shall be deemed to have so reverted at the commencement of this Regulation.
24. It is thus clear that the main object of the amendment of 1976 was to take out certain lands, as mentioned in para. 13(3) of Land Reforms Regulation from operation of general provisions of Land Reforms Regulation and if a notional surrender thereof had been made by the declarants in favour of Pakistan Land Commission or the Government, the same has been nullified by the amendment.
25. Furthermore, the effect of this amendment has been given retrospectively, i.e. From the date of commencement of this Regulation. In other words, all actions taken by Land Reforms Authorities, be that of a Deputy Land Commissioner or a Land Commissioner as regards resumptions of lands covered under para. 13(3) in favour of the Government have dissipated with retrospective effect by Legislature itself. Thus, obviously the action taken by DLC, Dera Ghazi Khan, the Land Commissioner, Multan or Federal Land Commission in respect of lands in Barkhan District have been nullified by this amendment.
26. This view is further supported by Memorandum of Chief Land Commissioner, Baluchistan (Annexure B) para. 2 of which reads as under:--- "The effect of this amended sub-paragraph is that the Leghari Declarants of Barkhan Tehsil of Loralai District have surrendered lands in which they had Aala Malkiyat rights, that land shall not be ordered to be resumed for grant under the provisions of para. 18 of M.L.R.
115. Such excess lands shall revert to Adna Malik of that land."
27. It is also apparent from perusal of the letter that out of 19 cases of Leghari declarants, 13 had been decided, whereas remaining 6 cases were sub judice. It was, therefore, directed that such orders of resumption shall have to be amended to the extent that the excess lands of these declarants in which they had Aala Malkiyat rights shall vest in the Adna Maliks concerned. In para. 4 it was observed that those orders will have to be revised by the Land Commissioner, Multan Division.
28. Consequently the Deputy Land Commissioner, Loralai District was ordered to supply detail information of all lands of these 13 persons to Land Commissioner, Multan Division for further action in accordance with law.
29. Hence, it is clear that the object of amendment in para. 13(3) was to exclude such lands from application of Part III and to deal with it in a special manner as provided by the amended clause.
30. We, therefore, unhesitatingly concur with the arguments of petitioners' counsel that all actions taken by Deputy Land Commissioner, Dera Ghazi Khan or of the .Hierarchy under Land Reforms as regards resumption of these lands under Part III were nullified by this amendment and fresh proceedings were ordered to be initiated by Chief Land Commissioner, Baluchistan. Thus, the first point that since resumption of lands prior to amendment have been set at naught by Legislature introducing substitution in para. 13(3) of Land Reforms Regulation, 1972 is settled in affirmative. The impugned orders passed by Deputy Land Commissioner, Dera Ghazi Khan or of the hierarchy as a whole prior to the Amendment Act, 1976 have been set aside not by Courts but by Legislature itself.
31. Resultantly the cases were ordered to be re-adjudicated in the light of the amendment and thus the same did not remain past and closed transaction.
32. It is thus settled that in all those cases, falling under para. 13(3) of the Regulation, if the Government had taken further action by reverting such excess lands to the Adna Maliks, occupancy tenants, mortgagees etc. By subsequent independent proceedings and the records had been accordingly changed in pursuance of such orders or actions, taken in accordance with provisions of para.13(3), before 23-3-1990, such actions have attained finality and are fait accompli. But in those cases, where no further action had been taken by the Government, as in the case in hand, the matters remained sub judice and pending.
33. We now proceed to attend to the most important question raised before us viz. The effect of the judgment of Supreme Court of Pakistan whereby it declared certain paras. Of the Regulation (including para. 13) as void being repugnant to Injunctions of Islam (PLD 1990 SC 99), and to determine the fate of lands in dispute in the slight of judgment of Honourable Supreme Court of Pakistan. For determination of this question it would be expedient to reproduce the order of the Court which reads as under:--- 1 ........................................
2. In accordance with the opinion of the majority of the Judges separately recorded, it is held that the following provisions of the Regulation the Act and the Punjab Tenancy Act, 1887 to the extent indicated against each, are repugnant to the Injunctions of Islam.
(i) ..........................
(ii) The whole of paragraphs 7,8,9,10,13 and 14 and consequentially paragraph 18 of the Regulation.
(iii) ........................
(iv) ........................
(v) ........................
(vi) ........................
(vii) ........................
(viii) ........................
(3) ........................
(4) ........................
(5) ........................
(6) This decision shall take effect on 23rd March, 1990 whereupon the provisions declared repugnant to the Injunctions of Islam will cease to have effect.
(7) The operation of self-executory provisions of the Law Reforms Regulation, 1972 and the Law Reforms Act, 1977 and the ancillary thereto shall not in any manner be affected by this decision till the aforesaid provisions cease to have effect, i.e. On 23-3-1990."
34. The matter can be approached from two angles; firstly that the entire para. 13 has been declared void- and it has further been held that decision of the Court shall take effect on 23-3-1990 and secondly, that there appears to be a saving clause as regards operation of self-executory provisions of the Law Reforms Regulation, 1972 and the Law Reforms Act, 1977 which shall not, in any manner, be affected by the decision till the aforesaid provisions cease to have effect, i.e. On 23-3- 1990.
35. "SELF-EXECUTING CONSTITUTIONAL PROVISIONS: Term has reference to provisions which are immediately effective without the necessity of ancillary legislation. Constitutional provision is 'self-executing:'1if it supplies sufficient rule by which right given may be enjoyed or duty imposed enforced; Constitutional provision is not 'self-executing' when it merely indicates principles without laying down rules giving them force of law."
36. Similarly the self-executing provision has been defined in Ballantine's Law h Dictionary as under: "SELF-EXECUTING PROVISIONS: A provision of a Constitution which is effective without legislation, no action by the Legislature being required to put it in operation. 16 Am J2d Const L94.
37. A Constitutional provision may be said to be self-executing when it takes immediate effect and ancillary legislation is not necessary to the enjoyment of the duty imposed. In short, if a Constitutional provision if complete in itself, it executes itself. Lanigan v. Callup, 17 NM 627, 131 p 627."
38. From bare perusal of aforementioned definitions it becomes clear that a provision may be said to be self-executing when it takes immediate effect and ancillary legislation is not necessary to the enjoyment of the right. Adjudging the provisions of para. 13(3) on the aforementioned touchstone, it can be safely held that it has got 2 parts and the first part is self-executory whereas the second part is not self-executory, because the first part lays down, after describing the nature of possessing/ownership as occupancy tenant, lessee or mortgagor, Muqarraridar as Aala Maliks that excess land shall not vest in the Government and the second part suggests that such (excess lands) shall, subject to other provisions of this regulation, revert to the lessor, mortgagor, occupancy tenant, Muqarridar or Adna Malik as the case may be ---------It is thus clear that for the 0second part determination by way of ancillary legislation or rules is required because there might arise a case as the case in hand, as to who is Adna Malik or a mortgagor or a lessor or an occupancy tenant, if different parties contest. Furthermore, again a situation can be visualised if the mortgagor may redeem a mortgage etc. And the consequences thereof shall have to be taken into consideration.
39. Our aforementioned view is supplemented by wordings used in para. 13(3) because as far as the question of excess land is concerned it has been expressly mentioned that the same shall not vest in the Government, but as far as second part is concerned it has been subjected to the other provisions of Regulation indicating that such excess lands shall revert to Adna Maliks, occupancy tenants etc. For which it was mandatory and obligatory on the functionaries under Land Reforms to initiate proceedings in order to determine the actual occupancy tenant, lessor, mortgagor, or Adna Malilc, and to take further action accordingly. But no notice or action whatsoever was taken by the functionaries under Land Reforms in order to revert the possession of excess lands to tenants or Adna Maliks despite clear instructions and order passed by Chief Land Commissioner, Baluchistan as mentioned in the preceding paras.
40. We now proceed to determine the first part that section 13 as a whole was declared void, and the judgment would take effect from 23-3-1990. Thus, action under para, 13 of Land Reforms Regulation could be validly taken and finalised till such date, i.e. 23-3-1990. All actions so taken are protected and secured, but if no action under para. 13 had been taken till the crucial date, then such cases are open and no action could be taken in respect of such lands after expiry of period as determined by the Supreme Court.
41. After the announcement of the judgment of the Supreme Court on 10-8-1989 the functionaries under Land Reforms were competent to initiate proceedings to deal with the excess lands of Barkhan District, in order to revert them to Adna Maliks or occupancy tenants by undisputedly no action was taken despite the clear order and instructions of Chief Land Commissioner, Baluchistan, therefore, in such circumstances, we have no other option but to accept the argument advanced before us that since no action, in respect of disputed land was taken by respondents, therefore, their cases are not fait accompli, in the eyes of law.
42. Finally, after 23-3-1990 para. 13 of the Regulation whether self---executing or otherwise became ineffective in view of the judgment of Honourable Supreme Court and the respondents failed to apprise us that the Government has promulgated any other law to hold the field, as such the position of these lands would be the same as was before the Law Reforms Regulation.
43. Being confronted with this situation, Chief Land Commissioner, perhaps mindful of this legal position, took a novel plea that the petitioners and their predecessors-in-interest enjoyed only notional Aala Malkiyat over these lands. In fact, they were Jagir holders till 197,4 which also came to an end with the promulgation of Abolition of Jagir and Intermediary Interest Regulation, 1974. As such the property being Jagir would vest in the Government.
44. This argument prima facie looked very impressive and convincing but from minute scrutiny it became clear that these lands do not fall in the definition of Jagir. Jagir has been defined by section 3 of Regulation No.1 of 1974 as under:--- "JAGIR: Jagir includes:--
(i) any grant of land by way of Jagir;
(ii) any grant of money made or continued by or on behalf of the State which purports to be or is received out of land revenue;
(iii) any assignment or release of land revenue;
(iv) any estate in land created or affirmed by or on behalf of the State which carries with it the right to receive or collect land revenue or any portion thereof; and
(v) any assignment of dues recoverable but for such assignment, by the Provincial Government."
45. Regulation 1 of 1974 provides 4 special procedures for declaring a certain property as Jagir or Intermediary Interest. Section 8 of the Regulation provides that if a question arises whether a particular grant is or is not a Jagir or whether a particular interest is or is not an Intermediary; it shall be referred to the Provincial Government whose decision thereon shall, save as provided in section 9 and section 10, be final. It is further provided that a person aggrieved by any order may prefer an appeal to the Federal Government and a revision shall also lie to the Federal Government.
46. It is thus clear that apart from such property as has been a grant of land by way of Jagir by the Government, if the Government considers any other property as ' Jagir' it shall proceed under section 8 by making a reference and an opportunity given to the person aggrieved to file an appeal or revision to the Federal Government.
47. Admittedly no such action has been taken by the Government under Regulation I of 1974 declaring the property in dispute as Jagir. Nor the Government has taken into possession this property as Jagir.
48. Be that as it may since the question has been raised before this Court the same had to be adjudicated upon. In the first instance, it is pertinent to refer to the agreement executed by the predecessors-in-interest of the petitioners with the then British Government of Baluchistan (Annexure A). This agreement has been filed by Chief Land Commissioner alongwith his comments. The opening para of the agreement reads that:---- "the settlement embodied in the Memorandum, dated 22nd October, 1923 under which the Leghari claimants were declared full proprietors of 12000 acres of land in the Berun-e-Burjiyat land of the Leghari Circle, has proved to be impracticable, we the undersigned Leghari Sardars and sole proprietors of the lands in question, of our own free-will and accord, do hereby agree to forgo our "Adna Milkiyat" (inferior proprietary rights) in the aforesaid lands and to hand over the full management thereof to the Baluchistan Administration, subject to the following conditions:--"
49. This clearly shows that this land was not a grant by the Government in favour of Legharis but the Legharis were the full proprietors of these lands who, of their own free accord entered into an agreement with the then: Government of Baluchistan through Revenue Commissioner namely, T.
50. Keys, Lt.-Col. On 10-10-1927.
51. As it was not a grant by the Government in favour of the Legharis, therefore, it does not fall in the definition of Jagir as defined in the Regulation No.1 of 1974 because although word 'Jagir' has been repeatedly used in the following paras. Of the agreement but factually this land belonged to the Legharis who gave its management to the then Government of British Baluchistan as they were not residents of Baluchistan and could not manage this huge property.
52. Mr. Khawaja Tariq Rahim strenuously urged before us that this property, in no way, falls in the definitions of Jagir as defined in Regulation I of 1974 or otherwise. He invited our attention to PLD 1967 Lah. 533 and contended that Mr. Justice Chohan (as he then was) has delivered an illuminating judgment on the subject. We have perused the said judgment in which the honourable Judge .Has undertaken a survey of the word ' Jagir' as was prevalent in the subcontinent. It is evident from the facts of the said case that one Mr. George Constable Chill, a pensioner from Salt Department was given grant of a tract of land measuring 3000 acres by the then Government of Punjab on 1-10-1864. Thus, it was the Government land which was given as a grant. So much so that in para.3 of the agreement with Mr. Chill it was clearly laid down that no transfer of proprietary rights will be recognised by Civil Courts or by the Revenue Officers of Government unless duly registered. But here in the case in hand undisputedly the lands in question belonged to Legharis who entered into an agreement with the then British Government to hand over the said lands for the purpose of management and in lieu thereof to get certain share from the land revenue.
53. The learned Judge has taken note of different definitions of 'Jagirs'. From all the definitions as given in the judgment one thing becomes crystal clear that the grant of lands to retainers were always by the Emperor, the Crown or the Government. He has also surveyed Jagirdari system of the Mughals. According to learned Judge Jagir etymologically means" Jai', a place and ' Gir' holding and employees a tenure created by Muhammadan Government in favour of its servants whereby public revenue was assigned in return of service.
54. Another important question was that the Government of Punjab was the owner of land which was granted to Mr. Chill or even sold to him for digging the canal whereafter Government exempted or pardoned guarantee from payment of land revenue. Thus, basic ingredient of Jagir was that the land was Government land which was either granted or the land revenue of which was pardoned/redeemed in favour of the retainer.
55. This being so no action was taken by the Government of Baluchistan under Regulation 1 of 1974 to declare this property as Jagir. A portion of the land revenue was agreed to be paid to the Legharis in lieu of the management by the Government of their personal lands.
56. Thus, by no stretch of imagination the lands in question can be declared as Jagir. Consequently, stand taken by the Chief Land Commissioner, Baluchistan is devoid of any force. Furthermore, the respondent-Government or C.L.C. Shall not be allowed to blow hot and cold at the same time.
57. Regulation 1 of 1974 was promulgated in the year 1974. But till 1976, the C.L.C., Baluchistan treated these lands as property of the petitioners. Had it been a Jagir, the Government could conveniently take action under Regulation 1 of 1974. But action was taken under Land Reforms Regulation 1 of 1972, thus admitting ownership of the petitioners over these lands who declared excess lands and initially action was taken under the Land Reforms Regulation till 1976-77. The Government, therefore, did not treat these lands as Jagir but lands belonging to Legharis. As such Government is now estopped to take a plea that these lands are Jagir, without taking action under Regulation 1 of 1974.
58. Besides, the petitioners' counsel emphatically canvassed that whoever desires any Court to give judgment as to any legal right or liability dependant on the existence of facts which he asserts, must prove that those facts exist. Likewise our attention was drawn to Articles 117, 110 and 126 of Qanun-e---Shahadat, 1984 which equally apply to cases to which Government is a party. The Additional Advocate-General utterly failed to place before us any material that the property in dispute is a Jagir or, in fact, belongs to the Government. In presence of the counsel for the parties we perused the record and Jamabandi of Berun-e-Burjiyat land of District Barkhan entries of which clearly show that the petitioners are entered as Ala Maliks and the Government of Baluchistan as Adna Malik.
59. Another law point of paramount importance was urged that according to section 7(1)(c) of the Indian Independence Act, 1947 (10 & 11 GEC. 6, Ch. 30) treaties and agreements between His Majesty's Government and any person having authority in the Tribal areas have lapsed. It was urged that, the Leghari Sardars had entered into an agreement with the Government of British Baluchistan in 1927, therefore, after passing of the Indian Independence Act, 1947 all such agreements, treaties, grants, usages, sufferance lapsed. We gave an opportunity to the Additional Advocate-General to present his point of view of this legal position but he failed to controvert or rebut this argument. However, we have to take into consideration this argument in the light of provisions of Indian Independence Act, 1947. Section 7(1)(c) reads as under:----- Section 7(1)(c).---As from the appointed day-----
(a) .................
60. (b).................
(c) there lapse also any treaties or agreements in force at the date of the passing of this Act between His Majesty and any persons having authority in the Tribal areas, any obligations of His Majesty existing at that date to any such persons or with respect to the Tribal areas, and all powers, rights, authority or jurisdiction exercisable at that date by His Majesty in or in relation to the Tribal areas by treaty grant, usage, sufferance or otherwise;"
61. From bare perusal of the aforementioned provisions it becomes clear that the condition precedent for lapse of an agreement was that it should be with His Majesty and a person, having authority in Tribal areas. There is no denying the fact that the District Loralai (as it then was) fell in the British Government of Baluchistan and any action taken by administration of British Baluchistan was in the name of His Majesty. The Leghari Sardars had rights and authorities in the Tribal area of Barkhan as is evident from the agreement. Thus, the two prerequisites for attracting Section 7 (1)(c) are both available. It is further revealed from perusal of the aforementioned provisions that any obligation of His Majesty existing at that date to any such person (underlining is ours) or with respect to the Tribal areas and all powers, rights, authority, or jurisdiction exercisable on that date by His Majesty in or in relation to Tribal area grant, usage, sufferance or otherwise came to an end.
62. It is thus to be seen whether His Majesty had rights in Barkhan area as a grant to it by the Legharis.
63. The perusal of the agreement clearly supplements this view, as the full management of these lands was given to His Majesty's Government, a right to possess and manage the lands by Leghari Sardars.
64. From perusal of the proviso of section 7 (1)(c), it appears that identity was given as regards to customs, transit and communications, posts and telegraphs or other like matters. But other agreements were, by legislation, declared as having been lapsed. We find substance and force in the arguments that the right of His Majesty to possess and manage the disputed lands as a result of agreement by Leghari Sardars came to an end or lapsed with the promulgation of Indian Independence Act, 1947.
65. Again a question would arise, though, none pressed before us, why the petitioners failed to get a declaration to that effect during such a long period? The answer is found in the fact that the proprietorship of Legharis in the said lands has never been challenged till 1972 when Land Reforms Regulation -was promulgated. So much so that even at that time these lands were treated as belonging to them as they were allowed to make a declaration of their excess lands of District Barkhan. Nobody raised any objection to such declaration, thus impliedly admitting the right of title or ownership to the said lands. However, now when the Government took a special plea that these lands are Jagirs by dint of agreement entered into by the Leghari Sardars and the then British Government of Baluchistan, therefore, after promulgation of Regulation 1 of 1974 such Jagirs ipso facto vest in the Provincial Government, the petitioners' counsel urged that it is not so because firstly the lands are not Jagirs but ancestral property of Legharis as is evident from the agreement which is admitted by the Government and secondly, that the Government after promulgation of Indian Independence Act, 1947 lost all rights in view of section 7 (1)(c) of the Indian Independence Act. It may further be seen that when Agreement has been lapsed by an Act, it lost its efficacy and became extinct and non-existent, by force of law. No declaration to be sought from a Court was required as regards a fact which has been made non-existent by law itself.
66. It is to be noted that the successor Government or a Dominion would inherit only such rights which were available at the time of Independence. But if by an Act (Indian Independence Act) the agreement with His Majesty's Government by any person in the Tribal areas has been at naught, their any right or liability arising out of such agreement would not be available to pass to the successor Government. Mere flow of time in particular circumstances of the present case would not entitle the Government to claim rights on the strength of an agreement which has been abrogated or neutralised by legislation. The agreement has thus been revoked by an Act and as the Government did never make claim before us that it enjoys the right of the property as owner but merely contended that the Government was Adna Malik as per record which is based on nothing else but the agreement, therefore, if the agreement is revoked by law so are the rights of the Government.
67. To sum up the whole discussion, at the cost of repetition, it is observed that the orders passed by respondents under Land Reforms Regulation after declaration filed by the petitioners, resuming lands of District Barkhan were set at naught by Amending Act of 1976. No action was taken by the Government after Amending Act of 1976 to revert to Adna Malik said lands and the matter remained pending till the Supreme Court declared section 13 as void being repugnant to Injunctions of Islam to be effective from 23-3-1990. The lands in dispute do not fall in the category of Jagir because neither the British Government nor the present Government has given these lands as a grant to Legharis. Rather the British Government admitted the proprietary rights of the Legharis over these lands in the agreement of 1927 and even prior to that in agreement of 1923 as is evident from the agreement which has been relied upon by respondent-Government. According to Indian Independence Act all agreements entered into between His Majesty and Sardars of Tribal areas bestowing certain rights, lapsed in view of section 7(1)(c) of the Independence Act.
68. The nutshell of the above-discussions would be that the Legharis are the proprietors and owners of the lands in dispute and Land Commissioner of Pakistan and Government of Baluchistan have no rights whatsoever in the same. Resultantly all the actions taken under Land Reforms by respondents in respect of lands of Berun-e-Burjiyat Barkhan Leghari are declared void by dint of Amendment in law. However, we make it abundantly clear that since lands of Legharis in District Barkhan other than lands in Berun-e-Burjiyat Barkhan Leghari which are in possession of occupancy tenants shall not be affected because neither they have been made a party before us nor any relief has been claimed against them. This order shall be effective only as regards lands of Berun-e-Burjiyat Leghari.
69. Resultantly, we accept the petition and actions taken or orders passes by respondents as regards resumption of lands (Annexures A/1 to A/9 to the petition) and other proceedings taken under, M.L.R. 115 in respect of lands in Tehsil and District Barkhan namely Berun-e-Burjiyat Barkhan Leghari are declared as having been passed without lawfull authority and the same thus carry no legal effect. The petitioners are at liberty to enjoy full proprietary rights over abovementioned lands situated in Teshil and District Barkhan known as ' Berun--e-Burjiyat Barkhan Leghari'.
70. Keeping in view the intricate legal questions we are not inclined to pass orders as to costs.