' SABIHUDDIN AHMED, J.--The petitioner owned 371-27 acres of agricultural land in District Karachi East prior to the enforcement of Land Reforms Regulation in 1972. Some of such land according to the petitioner, were irrigated through water drawn from wells (wahi chahi). While the rest depended on rain water (barani). According to the petitioner, after the enforcement of Land Reform Regulations, the petitioner filed a declaration before the respondent No,4. i,e, Deputy Land Commissioner, Karachi East, who passed an order on 10-10-1972. Whereby, treating the entire holding of the petitioner as barani land, the petitioner was allowed to retain an area of 300 acres and surrender an excess area 71-27 acres in terms of a decision of the Sindh Land Commission dated 29-8-1972. Requiring that land within the District of Karachi be treated as unirrigated. This decision of the Sindh Land Commission was also published by way of a note at the root of a notification of the Commission dated 12-6-1973 discussed in para. 2 below.
2. On 7-6-1973 the Sindh Land Commission (respondent No,2) issued a notification purporting to redetermine the basis of calculation of produce index units (PIUs) for the purpose of calculating the maximum sealing of land which a person could lawfully retain under the Regulations in respect of lands located in Karachi. According to this notification in 54 dehs including those where the petitioner's lands were located, wahi chahi land was to be assessed as 120 P.I.Us. Per acre and barani at 100 P.I.Us. Per acre and for the rest of the area in the District P.I.Us. Were to be assessed according to the method prevailing in Mirpur Sakro Taluka depending on the mode of irrigation.
However, as mentioned in para. 1 in terms of note contained at the foot, of this notification the land within the District of Karachi was to be treated as unirrigated land for the purpose of para. 8(1) of the Regulations. On 10-1-1975, the then Chairman Federal Land Commission (Respondent No,1) in the purported exercise of the suo motu revisional powers conferred by para. 29 of the Regulations examined the legality, propriety and correctness of the foot note to the Notification dated 12-6-1973 and held that the foot note was illegal and only barani or sailabi land in the District of Karachi could be treated as unirrigated land under the Regulations. All orders passed by Land Reforms Authorities on the basis of their aforesaid foot note were declared to be illegal and resultantly the Land Reforms Authorities reopened the cases already decided. Consequently the respondent No,4 on the basis of the aforesaid order of the respondent No,2 reassessed the petitioner's holding and directed vide orders dated 9-4-1978 and 30-4-1978 that the petitioner should surrender 237-12 acres of barani land. The aforesaid order was passed by the respondent No,4 without hearing the petitioner.
3. The petitioner preferred an appeal against the aforesaid orders of the respondent No,4 before the respondent No,3 i,e, the Land Commissioner, Karachi Division. It was inter alia contended that the Produce Index Units (PIU) for the purpose of determining the extent of the whole of the land which the petitioner could retain were calculated on a basis not permissible under law, a gift made by the petitioner in favour of his son had been unlawfully declared void and the order was passed without hearing the petitioner. The respondent No,3 allowed the appeal and set aside the order of respondent No,4 on the last mentioned ground and remanded the case to the latter for afresh hearing. Nevertheless with respect to the remaining contentions it was observed the same could be agitated before the respondent No,4.
4. Instead of appearing before the respondent No,4 or preferring an application for revision before the Chief Land Commissioner the petitioner chose to invoke the jurisdiction of this Court under Article 199 of the Constitution and proceeded to call in question the legal validity of the notification of the respondent No,2 dated 12-6-1973 as well as order of the respondent No,1 directing reopening of cases. Mr Shamsul Islam, learned counsel for the petitioner raised before us the following contentions:--
(i) That produce for lands located in Karachi Division had to be determined on the basis of the directions of the West Pakistan Land Commission and the respondent No, 1 . Had no authority to revise the same vide Notification dated 12-6-1973.
(ii) That the Sindh Land Commission having decided that all the lands in the District of Karachi be treated as unirrigated lands for the purpose of para. 8(1) of the Regulations the respondent No,1 had no jurisdiction to reverse the decision and direct reopening of cases already decided..
(iii) That the respondent No,4 had no jurisdiction to pass an order on 9-4-1978 declaring the gift made by the petitioner through registered instrument in 1975 to be void.
5. With a view to appreciate the contentions raised it may be appropriate to refer to the relevant provision of the Land Reforms Regulations (hereinafter mentioned .As Regulations), providing for maximum limits of irrigated holding and surrender of excess land. Para. 8(1) of the regulations reads as under:-- "8. Limits on individual holdings.--(1) Save as otherwise provided in this Regulation, no person shall, at any time, own or in any capacity possess land in excess of one hundred and fifty acres of irrigated land or three hundred acres of unirrigated land, or irrigated and unirrigated land the aggregate area of which exceeds one hundred and fifty acres of irrigated land (one acre of irrigated land being reckoned as equivalent to two acre of unirrigated land), or an area equivalent to twelve thousand produce index units of land, whichever shall be greater."
' It may be noted that the Regulation provides for two distinct measures of determining maximum area of land which an owner is allowed to retain under the Scheme of Land Reforms, giving the owner the benefit to retain the larger area computed through either of the two methods. According to the first method, the permissible holding allowed to be retained on the basis of acreage i,e, an owner may retain 150 acres of irrigated or 300 acres of unirrigated lands. In case of partly irrigated and partly irrigated land calculation may be made treating their two acres of unirrigated land as equivalent to one acre of irrigated land.
6. Second method of computation is premised upon the relative producing of the land in question on a notional basis described as "produce index units". The expression "produce index units" has been defined in para. 2(10) of the Regulations which reads as under:- "2(10), produce index unit' means the measure in terms of which the comparative productivity of an area of land of a particular kind in a particular assessment circle or area is computed and expressed for the purposes of the schemes relating to resettlement of displaced persons on land, or was determined under the provisions of sub-paragraph (10) of paragraph 2 of the repealed Regulation, and in respect of an assessment circle or area where no such unit was determined, such measure as may be determined by the Commission for the province within which such assessm ent circle or area is situated."
7. Mr. Khwaja Shamsul Islam argued that when on the basis of comparative productivity of an area of land in a particular area had been computed and determined under a scheme relating to resettlement of displaced persons or had been so done under the repealed Regulation. i,e, West Pakistan Land Reforms Regulations, 1959, such units could not be re-determined by the Land Commission of a Province. According to learned counsel the power of the Provincial Land Commission was exercisable only when no such unit had been determined.
8. Elaborating his arguments Mr. Khawaja Shamsul Islam contended that such determination had been effected under the West Pakistan Land Reforms Regulations (M.L.R. 64) in respect of lands located in the-then Federal Area of Karachi vide letter dated 12th June, 1959, from Secretary West Pakistan Land Commission addressed to the Chief commissioner of Karachi, the contents whereof may be reproduced as under:-- "Sir, I am directed to inform you that the West Pakistan Land Commission has in its,eleventh meeting held on the 9th June, 1959, decided that the produce indices of flow, lift and combined modes of irrigation of the adjoining Mirpur Sakro Taluka should be adopted for the Federal Area of Karachi for the purpose of calculation of the produce index value of the land Produce indices for Barani Soil, wherever it exists, in the Federal area shall be 1/4th of the produce value of flow soil. It is requested that these produce indices should be adopted for the purpose of the implementation Martial Law Regulation No,64 and instructions should be issued to the subordinate staff accordingly."
9. Learned counsel referred to an extract from a book let of P.I.Us. In various Districts of West Pakistan published by Government of West Pakistan in 1959 in respect of Thatta District filed as Annexure G to the memo. Of petition, the relevant part whereof may be reproduced as under:-- ' "PRODUCE INDUCES FOR THE DISTRICTS IN THE PROVINCE OF SINDH EXTRACT COPY FROM BOOKLET OF P.I.Us. IN VARIOUS DISTRICTS OF WEST PAKISTAN PUBLISHED BY GOVERNMENT OF WEST PAKISTAN IN 1959 THATTA DISTRICT (Page--53)
' Mirpur Sakro (Non-Barrage) flow 20 Combined 17 Lift 14 ' According to learned counsel produce index units for lands in Karachi had to be calculated on the basis of such determination in respect of Mirpur Sakro Taluka of Thatta District and accordingly, in terms of the extract, produce index units of lands irrigated through flow, in lift and combined modes of irrigation had to be calculated at the rate of 20, 14 and 17 units per acre.
Unirrigated/barani land was to be treated as containing 5 produce index units (being 1/4th of flow soil) per acre.
10. Prima facie, in all fairness to the learned counsel, the argument does appear to have the merits of logical consistency. Nevertheless the extract cited by the learned counsel does not clearly indicate that the figure contained in the third column relates to produce index unit for one acre of land. Learned counsel was unable to place before us the original text or any other material to support his contention to the aforesaid effect. Moreover, according to the measure of produce index unit for barani land in Mirpur Sakro/Karachi, suggested by the learned counsel it appears that a person may be entitled to retain as much as 2400 acres of such land (12000%5), which would be 8 times the extent of land he would be entitled to retain, in case such land was to be calculated on the basis of acreage. It is also difficult to assume that the Land Commission vide the impugned notification decided to evaluate land in 54 Dehs had 100 produce index units per acre while land, in rest of the District was to be assessed at the rate of 5 units per acre thereby creating a difference of 1: 20 amongst owners of different parts of the same kind of lands in the same District. Moreover, as observed by the Honourable Supreme Court in Federal Land Commission v. Inayatullah and others (1978 SCM R 281) ,produce index units are to be determined on the basis of physical check of the area. In the circumstances we are inclined to uphold the findings of respondent No,3, directing the petitioner to raise his grievance before the respondent No,4 who will conduct an appropriate inquiry into the question how produce index units for the area in question have been determined and thereafter, decide the matter in accordance with law.
11. Learned counsel then attempted to question the order of the respondent No,1 on the ground that rule making power under the Land Reforms Regulations had been delegated to the Provincial Land Commission and once the aforesaid commission had laid down a rule vide their decision dated 29-8-1972 mentioned as a note in the notification dated 7-6-1973, the respondent No,1 had no jurisdiction to review or revise the same. We are unable to subscribe to this view for more than one reason. In the first place we are extremely doubtful if the aforesaid decision can be treated as statutory rule in terms of para. 6 of the Land Reform Regulations. Moreover, in any event a clear distinction between irrigated and unirrigated land has been brought forth in para 8 of the Regulations themselves. A Provincial Land Commission is indeed a creation of the Regulations and the rule making power conferred upon it is only intended for the purpose of carrying out the purposes of the Regulations. Indeed commission may have the power to classify the measure of productivity of land in a particular area by determining produce index units. Nevertheless, it cannot proceed to make an omnibus declaration to the effect that rrigated land in a particular area must be treated as unirrigated and thereby defeat the intention of the Regulations when the Regulations themselves have drawn a distinction between irrigated and unirrigated land for the purpose of determining the maximum limit which a person is entitled to retain (on acreage basis). A declaration by the Provincial Land Commission purporting to treat irrigated land as unirrigated would be plainly ultra vires the power of the Land Commission and in this respect we find no illegality in the order of respondent No,1 to the aforesaid effect.
11. As regards extent of the powers of the respondent No,2 it may be observed that para. 29 of the Regulations conferred vide powers of Revision upon the Federal Government, which may be reproduced as under:-- "29. Revisional Powers of the Federal Government.--The 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) which is 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 orders: ' 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 November, 1976) or
(b) on the application of any aggrieved person made after the expiration of sixty days from date of such order or from the enactment the Land Reforms (Amendment) Act 1973, whichever is later, excluding the time requisite for obtaining a copy of such order."
' It may be pertinent to mention that the above quoted revisional powers of the Federal Government were delegated to the Federal Land Commission by Rule 4 of the Federal Land Commission Rules, 1974 and under the Land Reforms Regulations (Validation of orders Ordinance, 1978) orders passed by the Chairman or by Member of the Federal Land Commission at any time prior to 24-6-1978 were validated.
13. With respect to the findings of the respondent No,4 relating to the gift said to have been made by the petitioner in favour of his sons it might suffice to observe that such alienation having been made not only after 20-12-1971 as mentioned in para. No, 7(1)(a) of the regulations, but even long after the petitioner was required to file a declaration the property allegedly gifted in 1975 could not be excluded from his holding for the purpose of a declaration required to be filed under para.
12. The contention of the learned counsel in this respect appears to be entirely misconceived.
14. In view of the above discussion we find that there is no reason to interfere with the appellate order of the Respondent No,3 and we have no doubt that the concerned Deputy Land Commissioner will decide the Question of the petitioner's entitlement to retain land strictly in accordance with law. Having, therefore, found little substance in the petition we announced its dismissal vide short order dated. 8-12-1998.