QAZI MUHAMMAD FAROOQ, J.--- The petitioners, who are legal heirs of Badshah Sahib, the founder Ruler of the erstwhile State of Swat, have prayed for the following reliefs through the present writ petition:- (i)The orders of allotment of property, Annexures H to H-20, in favour of respondent Nos.3 of 23 and the proceedings connected there with may be declared to be illegal and without jurisdiction; (ii)The action of the Deputy Land Commissioner Swat at Mingora and the Chief Land Commissioner N.-W.F.P. Peshawar by which they have imposed restrictions on the petitioners in the matter of making their revised choice as per minutes of the meeting held on 27-10-1984 and the subsequent Notice dated 22-12-1986 be declared to be illegal, arbitrary, without jurisdiction and without lawful authority and of no legal effect; (i.e)The petitioners be allowed to exercise their right of choice in respect of all the lands covered by the 55 cases which were decided in their favour by the Tribunal Dir, Chitral and Swat; (iv)The Deputy Land Commissioner Swat at Mingora and the Chief Land Commissioner N.-W. F. P.
Peshawar, respondents Nos. l and 2, may be directed to do what they are required by law to do and allow the petitioners to exercise their revised choice unconditionally; and (v)any other relief appropriate in the circumstances but not specifically asked for.
2. Put shortly, the assertions made in the petitions are that late Badshah Sahib, who died on 1-10- 1971, owned huge landed and other property within as well as outside the State of Swat which was merged on 15-8-1969 alongwith the States of Dir and Chitral. After merger of these States the Commissioner Malakand Division performed the functions of the Ex-Rulers, subject to the supervision and direction of the Provincial Government, for sometime and thereafter, Regulation-I of 1969 called Dir, Chitral and Swat (Administration) Regulation, 1969 was promulgated. Under that Regulation a Commission known as Dir-Swat Land Disputes Enquiry Commission was constituted by the Governor N.-W. F. P. And the terms of reference were laid down in Notification No. 66-SO (SPL)-HD/70, dated 8th October, 1970. The appointment of the Commission opened a floodgate of claims and as many as 500 claims were filed against Badshah Sahib. On the death of Badshah Sahib his property devolved upon his sons Mian Gul Shahzada Jehanzeb, now dead and represented by Mian Gul Akbar Zeb etc. And Mian Gul Shahzada Sultan-e-Rum, petitioners herein, in equal shares. The sons of Badshah Sahib wanted to transfer most of the property to their children etc. Subject to the decision of the Commissioner but they were restrained by the Commissioner Malakand Division vide his order, dated 10-1-1972, issued on 12-1-1972. In the meantime the Land Reforms Regulation, 1972 known as M.L.R.-115 was extended to Malakand Division vide Notification No. 1964 L/C, dated 7-11-1972 and the petitioners were called upon to submit their Declarations under Para. 12 of the said Regulation. They were also threatened with resumption of excess land unless they made choice A within the contemplation of Para. 11 of the said Regulation. The petitioners took the stance that making of a choice would be meaningless unless their cases were finally decided as their almost entire property was subject-matter of claims and they did not know which property will ultimately fall to their lot. However, most of the lands of petitioners were provisionally resumed by the Land Commission Authorities and allotted to various persons. That the decision given by the then Chairman/Member Federal Land Commission were politically motivated and the Regulations were used to .Deprive the petitioners of their property on arbitrary and capricious grounds. That to undo these excesses the President's Orders Nos. l1, 12 and 13 of 1981 were promulgated which provided an opportunity to the affectees to seek review of the arbitrary orders and Mr. Justice (Rtd.) Qaisr Khan was appointed as Chairman, Tribunal Dir, Chitral, Swat for the purpose. That vide communication dated 6-4-1978 the petitioners were assured by the Land Commission that the land left with them will be undisputed and they will not suffer and accordingly they were permitted and asked to give fresh choice vide Memo. No. 74- 75, dated 22-6-1980. That many review petitions were filed before the said Tribunal and in 55 cases the decisions of the Chairman/Member Federal Land Commission were set aside and the petitioners were declared to be the owners of the subject-matter of those cases.
That the land declared to be the ownership of the petitioners in those cases consists of considerable area and the petitioners are well within their legal right to exercise their choice to the lands held to be their ownership but the respondents have imposed two restrictions; firstly, that they cannot ask for lands which have already been allotted-even those covered by the said 55 cases and, secondly, fresh choice must be restricted to the unallotted lands comprised in the said 55 cases. That the allotments of land covered by the said 55 cases in favour of respondents Nos.3 to 23 having been made without the knowledge of the petitioners and before exercise of choice by them were illegal and without lawful authority. That the choice of the land to be retained is to be made by the petitioners and the Land Commission Authorities have not power to impose restrictions in respect thereof. That the respondents have refused to withdraw the restrictions despite repeated requests and are also not inclined to do what they are required by law to do for fear that it may entail complications for the Land Commission and the Administration.
3. The view point of the Deputy Land Commissioner Swat and the Chief Land Commissioner N.- W.F.P., as highlighted in their parawise comments, is that consequent upon extension of M.L.R. 115 to the Malakand Division the landed property of the petitioners was specially measured which turned out to be 4872 acres equivalent to 50869 PIUs and the same was declared by the petitioners/declarants as their property for the purpose of M.L.R.-115. The e Deputy Land Commissioner, vide his order dated 25-8-1975, determined the holding of the petitioners and allowed them the permissible area for retention, namely 12000 PIUs each and the surplus area equal to 26829 PIUs was resumed from them and they were asked to submit their final choice but they went in appeal to the higher authorities which were eventually rejected and the Deputy Land Commissioner was directed to implement the order dated 25-8-1975. The petitioners were again asked to exercise their final choice and notices were also issued to them in respect thereof but Shahzada Sultan-e-Rum remained unresponsive and Shahzada Jehanzeb filed his choice on 22- 6-1977. The choice of Shahzada Sultan-e-Rum was prepared by the Deputy Land Commissioner, in compliance with the directions -of the Federal Land Commission dated 25-5-1977, in the light of overall area of choice given by him earlier. The choice of both the declarants was finalised with specific Khasra Numbers and the surplus land was resumed and allotted to the sitting tenants. It was correct that 55 cases were decided by the Special Tribunal in favour of the petitioners but in their fresh choice filed by them thereafter the land already allotted to the sitting tenants in 1977 was also included on which it was decided by the Federal Land Commission that the previous proceedings should not be set aside, the Deputy Land Commissioner should pass a supplementary order, the petitioners shall confine their fresh choice to the undisputed and unallotted area comprised in the 55 cases. The unallotted and undisputed area included in 55 cases was demarcated on the spot in presence of the agent of the petitioners which was larger enough and much more than the area to their entitlement from which they could pick and choose the area of their choice in their revised choice. The restrictions in question were just and reasonable particularly when the endeavour of the petitioners all along has been to get the implementation of the Land Reforms Regulation, 1972 delayed on one pretext or the other in which they have been successful to a great extent.
4. It was contended by the learned counsel for the petitioners at the outset that resumption of land involved in the 55 cases was illegal as it was made before final determination of ownership and the allotments having been made during the course of litigation and before the final determination of ownership can have no bring on the exercise of choice. It was further contended that the choice was not exercised by the petitioners and in one case it was half-heartedly exercised by Mian Gul Shahzada Jehanzeb and for that very reason the petitioners were all along clamouring for exercise of choice covered by the 55 cases and other valuable property and when ultimately then desired to make the choice the respondents imposed the aforementioned two conditions which ere arbitrary and without lawful authority. Reliance was placed on Mali Faqir Hussain and 3 others v.
Federal Land Commission, Islamabad and 3 others PLD 1976 Lah. 1083 and 1351 wherein it was held that Land Reforms Authorities cannot insist upon a particular type of choice and M.L.R.-115 made no distinction between tenanted and untenanted areas in matter of choice. Reference was also made to Muhammad Hayatullah Khan and others v. Federal Land Commission through its Chairman and another (PLD 1977 Lah. 166) in which it was observed that land until finally resumed and vested in Government creates no right of ownership in favour of tenant and the Land Commission Authorities cannot curtail the scope of concessions extended to the landowners by the Legislature.
5. On the other hand, the learned Assistant Advocate-General reiterated the contentions raised in the comments furnished by respondents Nos. l and 2 and added that in view of the declarations furnished by the petitioners and the choice exercised by them the excess area was allotted to the sitting tenants in accordance with law, therefore, the allotments cannot be challenged in view of the embargo contained in section 26 of M.L.R.
115. He further argued that if the reliefs prayed for by the petitioners are granted then the whole proceedings) under M.L.R. 115 would be set at naught. He also argued that the conditions in c question were lawful because it was a case of revised and not first choice.
6. The learned counsel for respondents Nos.3 to 23 adopted the arguments advanced by the learned Assistant Advocate-General and added that the petitioners had already exercised their choice in the Year, 1977 when the excess area owned by them was finally resumed, therefore, they were rightly directed to exercise their fresh choice out of the unallotted area covered by the 55 cases which was much more than their entitlement. He further argued that at this belated stage the petitioners cannot exercise fresh choice at all because choice of landlord as to area to be retained under sub-para. (1) of Para. 11 of M. L. R. 115 is required to be exercised before resumption of land as observed in PLD 1977 Lah. 166.
7. Having given the rival contentions raised at the bar our anxious consideration we do not feel persuaded to agree with the learned counsel for the petitioners. The petitioners are admittedly the owners of the land covered by the aforementioned 55 cases and the judgment dated 31-10-1981 of the Tribunal Land Disputes Dir, Swat and Chitral also makes it manifest that the same was not only owned by Badshah Sahib but was also recommended as such by the Dir-- Swat Land Disputes Enquiry Commission and the orders of the Federal Land Commission declaring it as property of the State were set aside. However, there is absolutely no substance in the challenge thrown to the allotments in favour of respondents Nos.3 to 23 because it is not only belated but also overlooks this glaring reality that the area covered by the 55 cases being owned at the crucial time by the petitioner was included in the Declaration Forms filed by them, was excluded from choice subsequently and having been found in excess of the area permissible for retention had been resumed and thereafter, it vested absolutely in Government in view of the provisions of section 13 of the Land Reforms Regulation, 1972. Besides, the orders of allotment do not suffer from any statutory violation or jurisdictional defect and having been passed by the competent Authority within the purview and framework of the Land Reforms Regulation, 1972 are immune from challenge in writ jurisdiction in view of section 26 (ibid).
8. This brings us to the main controversy emanating from the exercise of choice. The Land Reforms Regulations, 1972 was extended to Malakand Division on 7-11-1992 and for the purpose of its implementation the Deputy Commissioner Swat. It is evident from the order dated 25-8-1975 of the then Deputy Land Commissioner Swat. That at the outset Declaration Froms were filed on 7-12-1972 in respect of the property of Badshah Sahib by the Manager of his property although Badshah Sahib had died on 1-10-1971 and vide Notification No. 10\16 ---SOTA ---11\72-1523 dated 15-9-1972 his sons Mian Gul Shahzada Jehanzeb and Mian Gul Shahzada Sultan-e-Rum were declared to be his legal heirs. However, Declaration Forms by Mian Gul Shahzada Jehanzeb and Mian Gul Shahzada Sultan-e-Rum were filed on 10-6-1974. Notices were issued to them on 16-2-1974 to exercise their choice within a week but they gave their choice on 2-1-1975. A notice of partition was a15o issued to them on 17-5-1975 but in their reply dated 14-5-1975 they took the stance that they may be collectively given an area equivalent to 24000 P.I.Us. The P.I.Us. Were worked out as 50869 by the Settlement Officer and the excess area was provisionally resumed. The concluding paragraphs of the said order are worded thus:-- "
14. The declaration forms have been checked. Accordingly in exercise of powers conferred on me under the provision of the Land Reforms Regulation, 1972 as amended by the Land Commission N.- W.F.P., I hereby allow the declarants to retain an area equivalent to 24000 P.I.Us. Collectively (12000 P.I.Us. Each) and the rest of the land disputed and undisputed, measured and unmeasured, over and above the ceiling limit is hereby resumed provisionally in favour of the Government. In case any land included in the above choice a subsequently declared in favour of the claimants by Federal Land Commission, or in the process of execution of decree already passed, land included in the above choice is handed over to the claimants, the choice can be revised to that extent under the rules and adjustment made from the area resumed. The Declarants will submit on LR-11 their final choice for retaining an area equivalent to 24000 P.I.Us. Out of the list of 45 villages within a .Week. In submitting these the declarants will include the alienations/gifts made by them and which they have desired that they be included in the 24000 P.I.Us. Units plus the alienations held to be illegal by the Land Commissioner vide his order, dated 7-10-1974, as mentioned in para. 4 above. Schedules A and B of' the area retained and area surrendered be prepared from the available record prepared by the Settlement Officer.
15. The Declarants have desired to go in appeal to the Land Commissioner and accordingly they have been directed to appear before the Land Commissioner on 9th September, 1975."
The appeal filed by the declarants against the above order was dismissed by the Chief Land Commissioner on 13-9-1975 and suo motu revision petition was dismissed on 29-6-1976 by the Federal Land Commission, with direction to the Deputy Land Commissioner, Swat to implement his order, dated 26-8-197 without any further delay and resume the excess land from the declarants.
9. In compliance with the directions of the Federal Land Commission the excess land of the declarants was resumed by the Deputy Land Commissioner Swat, vide his detailed order dated 27- 6-1977. The said order discloses that on receipt of the record from the Federal Land Commission the declarants were asked by the Deput. Land Commissioner Swat, through notices, dated 26-8- 1976, to exercise their final choice in accordance with the specimen given in the notices before 8- 9-1976. They were also asked whether they would exercise their choice jointly or separately. The declarants in their separate replies stated that they would retain land equivalent to 12000 P.I.Us.
Separately in the villages laying between Mingora and Marghuzar and requested that in order to enable them to give specific Khasra Numbers the measurement of the land between Mingora and Marghuzar may be made. The needful was done and the Aks, field books and Khatunis were prepared and the declarants were asked to give their final choice. The notice issued in respect thereof was followed by a reminder issued on 4-5-1977 but the response was rather lukewarm as the choice was exercised only by Miau Gul Shahzada .Lohanxcb on 22-6-1977 through his son and attorney Shahzada Amir Zeb and the second declarant did not care to exercise his choice despite repeated reminders. However, the proceedings were taken to their logical conclusion in view of the direction contained in the D.O. Letter No.3066/LC, dated 25-5-1977 of the Secretary Land Commission N.-W.F.P. Peshawar that if the declarants had not exercised their choice so far then the Deputy Land Commissioner Swat should take action on his own and resume surplus land to the entitlement of the declarants immediately for allotment to the sitting tenants.
10. The declarants again took the matter before the Land Commission N.-W.F.P. As a result of which the proceedings landed in doldrums and the petitioners were asked to exercise a revised choice vide notices, dated 22-6-1980 and 1-?-1983 issued by the Deputy Land Commissioner Swat. It appears from the report of the Deputy Commissioner Swat, dated 16-2-1984 that fresh choice was exercised by the declarants on 21-1-1984 which raised certain controversies and resultantly the following decisions, were taken in the meetings held in the office of the Chief Land Commissioner N.-W.F.P. On 16-7-1984 and 27-10-1984.
"2. After considerable discussion, it was decided that in this case previous proceedings should not be set aside and Deputy Land Commissioner shall pass supplementary order.
3. Both the declarants had been allowed to exercise their fresh choice from all the areas covered by the cases decided in their favour by Mr. Justice (Retd.) Qaisar Khan's Tribunal. Both the Declarants had in their fresh choice, mistakenly opted for areas, which had been allotted to sitting tenants in the year, 1976. This point was also discussed in the meeting held on 16-7.1984 and it was decided that the Declarants could not, in their fresh choice, retain area, which had been allotted to the sitting tenants. "
Follow up action was taken by the Deputy Land Commissioner Swat by way of notices calling upon the declarants to exercise their revised choice from the unallotted and undisputed area only out of the landed property involved in 55 cases decided in their favour by the Tribunal but without any success as they filed the present writ petition on 3-3-1987 and obtained a stay order on 22-10-1989.
11. As observed in PLD 1977 Lah. 166 the declarant is obliged to exercise his choice in regard to the area to be retained before resumption of his excess land. It is amply clear from the chequered history of the proceedings under the Land Reforms Regulation, 1972 traced above that the land involved in the 55 cases was owned by the declarants at the outset and both of them had exercised the requisite choice before their excess land was provisionally resumed by the Deputy Land Commissioner Swat vide his order, dated 25-8-1975 and during the second round also, when the order dated, 27-6-1977 was passed by the Deputy Land Commissioner Swat in continuation of the order dated 25-8-1975, one of them had exercised fresh choice out of the undisputed area which is to be treated as choice on behalf of both as the land to which it pertained is jointly owned by both of them and has not been partitioned. Even if the choice exercised during the second round is kept out of consideration on account of the orders of the Federal Land Commission which were set aside by the Tribunal Land Disputes Dir, Swat and Chitral the choice exercised at the outset, when the land covered by the 55 cases was owned by the petitioners, is to be considered as the first choice made within the import of section 11 of, the Land Reforms Regulation, 1972. This would mean that the choice exercised by the petitioners on 21-1-1984 was not the first but the revised choice and same would be the case with regard to the choice which they now propose to exercise. The restrictions in question are thus unexceptionable because they have no nexus with the first choice and govern the revised choice made to be made after the allotment of some of the area covered by the 55 cases to the sitting tenants on the basis of the previous choice. The rationale is that an unfettered revised choice tends to take the proceedings back to square one.
The view gains strength from an authority of the Lahore High Court, not cited at the bar, reported as Capt. Muhammad Allah Dad v. Chairman, Federal Land Commission etc. PLD 1979 Note 124. In that case the declarant was allowed to surrender additional land on the basis of his fresh choice but was not allowed to retract his previous choice. It was observed I therein that a declarant surrendering land of his own choice cannot be allowed to turn around and withdraw his choice and persons acquiring rights in surrendered land cannot be left to his whims. The authority, PLD 1976 Lah. 1083, cited by E the learned counsel for the petitioners is distinguishable as the principle laid down by it governs the first choice. Similarly the citation from PLD 1977 Lahore 166 referred to by the learned counsel for the petitioners is not applicable to the facts of the present case because the land allotted to respondents Nos.3 to 23 was resumed vide the aforementioned two orders, dated 25-8-1975 and 27-6-1977 which still holds the field in view of the decision taken in the meetings held in the office of the Land Commissioner N.-W.F.P. On 16-7-1984 and 27-10-1984 that the Deputy Land Commissioner Swat shall not set aside the previous proceedings and shall pass a supplementary order with regard to the land involved in the 55 cases. Lastly, if the standpoint of the petitioners that they had not exercised any choice previously is considered as correct then there is no escape from the conclusion that having violated a mandatory provision of the Land Reforms Regulation, 1972 they must thank themselves alone for the unsavoury consequences.
12. The restrictions complained of appear to be justified from this angle also that the land allotted to respondents Nos.3 to 23 is about 3000 P.I.Us. Whereas the area covered by the 55 cases is quite large and as such choice can be conveniently made from the unalloted area.
13. Having disposed of all the questions raised in the case we will now deal with the application which was moved during the pendency of the petition by Mian Aurangzeb etc, through Mian Said Usman for impleadment as a party. The application (Civil Miscellaneous No.451 of 1993), which was resisted by the petitioners, stands dismissed for the short reason that the applicants being the legal heirs of Khyber Mian whose Review Petition was dismissed by the Tribunal Land Disputes Dir, Swat and Chitral on 20-8-1981 are neither a necessary nor a property party.
14. For the foregoing reasons, the writ petition is dismissed and the orders dated 22-10-1989, 11-5- 1992 and 11-10-1992 restraining respondents Nos. 1 F a and 2 from making further allotments