' RANA BHAGWAN DAS, J.---Through this Constitutional petition, petitioner seeks the report of the following reliefs: "(1) That by an appropriate writ the report of the Colonization Officer, the letter/orders of the Deputy Land Commissioner, Hyderabad Nos. L.R./Matli/171 and L.R./Matli/630, L.R/Mali/1817 dated 21-1-1974, 6-6-1974 and 10-7-1974 respectively (and all other letters, orders and proceedings affecting the rights of the petitioner shown in this petition) may be held to be without jurisdiction without authority, without an opportunity of hearing to the petitioner, illegal, hence null and void not affecting the ownership and possession of the petitioner, at 240 acres, lot. No,4, C-2/118-5, C-3/ 121- 35, situated in Deh Belo Rano Rahar, Taluka Ubauro, District Sukkur.
(ii) The Colonization Officer, Guddu Barrage, Sukkur may be directed to issue the T.O. Form in respect of the land involved in this petition."
2. Facts in brief leading to the petition appear to be that agricultural lands measuring 240 acres consisting of lot No, 4 situated in Deh Belo Rano Rahar, Taluka Ubauro were allotted to the petitioner under the scheme of sale of land to retired and retiring Government servants vide letter dated 16- 5-1963 issued by the Board of Revenue, West Pakistan, Lahore. For the purpose of allotment petitioner made an initial deposit of Rs,12,000 on 5-10-1963. This was followed by letter dated 19-7- 1965 by the Project Director, Guddu Barrage, A D.C Sukkur reaffirming the act of allotment and laying down the terms and conditions for completion of the grant. On 1-9-1965 an agreement deed was executed between the petitioner and the respondent No,5 laying down the conditions of grant which was apparently registered with the District Registrar, Karachi. On or about 28-10-1965 Ijazatnama was issued by Assistant Colonization Officer. Ubauro incorporating the details of and whereafter the possession of the antire :and was delivered to the petitioner. Later, Barrage Authorities withdrew an area of 60-0 acres of land from the lands allotted to the petitioner and granted some other land in lieu thereof which was set right by High Court in Appeal No, 72 of 1968.
Decided on 4-10-1973 With the promulgation of M.L.R 115 petitioner was required to submit his declaration of ownership of lands Accordingly he declared that he did not own and possess excess land which in terms of para.10 of M.L.R 115 was accepted by Deputy Land Commissioner, Hyderabad vide his order dated 21-10-1972. At one point of time there was default in payment of instalments with the consequence that allotment was cancelled with effect from Rabi 1968-69 but subsequently shifting of instalments was allowed by the Board of Revenue vide letter dated 26-7- 1973 and accordingly petitioner paid various instalments ending with the last instalment deposited on 25-3-1987:
3. In terms of 'para.10 of the Martial Law Regulation No, 115 successor incumbent of the office of the Deputy Land Commissioner with the permission of the Land Commissioner reopened and reexamined the case of the petitioner and after repeated notices sent to him by registered post which remained unheeded by his order dated 6-6-1974 Deputy Land Commissioner reviewed the order passed by his predecessor dated 21-10-1972 and resumed excess area of 140 acres with an option to the petitioner as to which survey numbers he would like to surrender. This order proceeds on the premise that the lands allotted to the petitioner were excluded from the operation of para.10 of M.L.R.115 on the ground that allotment stood cancelled from 10-5-1968. While petitioner had retired on 15-2-1962 by deposit of first instalment on 5-10-1963 he had acquired the lands within a period of two years of the date of his retirement and, thus. His case fell within the mischief of para.10 referred to above. As the petitioner did not submit his option in terms of the order referred to above by order dated 10-7-1974 Deputy Land Commissioner passed an ex parte order resuming specified lands measuring 140 acres to the Government. It is in these circumstances that the petitioner filed this petition in the month of February, 1990 on the grounds inter alia that all the orders were passed without lawful authority, without an opportunity of hearing to the petitioner, behind his back and such orders were void and without jurisdiction.
4. In the counter-affidavit filed by Assistant Colonization Officer on behalf of the respondents impugned orders have been defended and various averments made by the petitioner controverted in express terms. It has been urged that since the allotment of the petitioner was effected under para. 10 of M.L.R.115, it was necessary for the Colonization Officer, Guddu Barrage to inquire about the excess land from the Deputy Land Commissioner, Sukkur before the issuance of T.O. Form to the petitioner. It is added that T.O. Form was rightly refused in respect of the total area of 240 acres for an area of 140 acres was provisionally resumed vide Deputy Land Commissioner, Hyderabad's order dated 6-6-1974 followed by order dated 10-7-1974. Expression "provisionally resumed" has been used and explained in view of pendency of an appeal before the erstwhile High Court of Sindh and Balochistan as well as an order of status quo passed by Supreme Court valid for a period of six months in Civil Petition for Leave to Appeal preferred by Mst. Khurshid Assar and others against the petitioner and the respondents. Counter-affidavit so filed in Court in April, 1993 was not rebutted by way of any affidavit-in-rejoinder.
5. We have heard learned counsel for the parties at great length and gone through the material availabel on record. In order to comprehend the contentions raised at the bar it would be appropriate to reproduce para. 10 of M.L.R.115 around which the whole controversy revolves. It reads as under: "10. Acquisition of land by Government servants.---(1) No person who is or has been in the civil service of Pakistan and has at any time, between the 1st January, 1959, and two years of his ceasing to be in civil service, acquired any land or any right or interest therein, by any means whatsoever either in his own name or in the name of any of his heirs or any other person, shall own or possess any land exceeding one hundred acres: ' Provided that subject to the other provisions of this Regulation, any such person may, in addition to one hundred acres of land, own or possess any land which has devolved on him by inheritance or any other land, not exceeding the land so inherited, whether by exchange or sale, either in his own name or in the name of any other person.
(2) Where any person to whom the provisions of sub-paragraph (1) apply has, within the period specified therein, transferred in favour of any of his heirs or has acquired in the name of any of them any land, any such land continues to be owned or possessed by his heirs, he shall for the purposes of that subparagraph be deemed to be the owner of such land.
(3) Nothing in this paragraph shall apply to a person who is serving or has retired as a member of the Military, Naval, or Air Forces of Pakistan.
Explanation. For the purposes of this sub-paragraph and clause (d) of subparagraph (1) of paragraph 12, civil service of Pakistan means any civil service, post or office in connection with the affairs of the Federation or a Province, and includes a service as a Judge of the Supreme Court or a High Court, Controller and Auditor-General, Chief Election Commissioner and Chairman or Member of the Federal or a Provincial Public Service Commission, but does not include service as President, Governor. Minister, Minster of State, or as a Speaker, Deputy Speaker or other Member of the National or a Provincial Assembly."
6. Learned counsel for the petitioner vehemently contended that the Deputy Land Commissioner while reviewing the order passed by his predecessor acted illegally, without jurisdiction and in flagrant violation of the well-known principle of audi alteram partem inasmuch as the petitioner was neither served with any 'notice before the passing of the review order nor was he afforded an opportunity of hearing. Learned counsel also contended that as the petitioner was not put in physical possession of the lands, he did not acquire any right, interest or ownership in respect of the lands as contemplated by the provision of law referred to hereinabove. Lastly learned counsel submitted that provisions of para. 10 of M.L.R.115 were declared repugnant to the Injunctions of Islam by Shariat Appellate Bench of the Supreme Court of Pakistan in Qazalbash Waqf v. Chief Land Commissioner PLD 1990 SC 99 (284).. This decision of the apex Court was ordered to take effect from 23rd March, 1990 but both the counsel agree that amendment to this effect was not introduced by the Legislature in the relevant M.L.R.
7. Conversely learned Addl. A.-G. Appearing for the respondents and on Court notice has defended all the impugned orders as lawfully passed in exercise of authority and with jurisdiction. On the question of law, learned Addl. A.-G. Is of the view that the petitioner acquired vested right and interest in the lands allotted to him with the deposit of first instalment of Rs,12,000 on 5-1,0-1963. His opinion on the question of repugnancy of the provisions of M.L.R. 115 to the Injunctions of Islam as declared by the Supreme Court is that the case of the petitioner being closed and past transaction would not be governed by the dictum laid down by the apex Court.
8. Adverting to the first two contentions of the learned counsel it may be observed that sub-para.
(1) of para. 10 reproduced hereinabove restricts the holding of a retired civil servant to the land not exceeding one hundred acres in case he acquires any land or right or interest therein within two years of his ceasing to be a civil servant. Learned counsel vigorously contended that in terms of the letter dated 19-7-1965 Annexure C to the petition. His grant was to commence from the date the possession of land was given to him free of jungle growth and duly rectangulated. His further submission is to the effect that as per this letter from the Director, Gudu Barrage Project forest growth on the land was under clearance and the jungle clearance operations were to be completed by 30th September, 1965. He, therefore, contended that till such date the petitioner was put into physical vacant possession of the lands, he could not be held to have acquired the lands or any right or interest therein. We are afraid we cannot subscribe to this view of the counsel. To our mind by virtue of allotment of the lands in favour of the petitioner on the terms and conditions stated in the letter of allotment coupled with the payment of Rs,12,000 by him as first instalment towards the consideration of the lands he acquired a valid legal right and interest in the lands.
Such right in our view may be enforced at law and in the event of any breach might be capable of specific performance under the law. Irrespective of the averments made in the letter relied upon by the counsel which was sent long after the expiry of two years of the retirement of the petitioner and entirely in a different context, it can hardly be said that the petitioner did not acquire any right or interest to the lands within the stipulated period as above. It may also be observed that the words "any right or interest" have been used in the provision in disjunctive manner and not conjunctive to the expression "acquired any land". It would, thus, appear that the view taken by respondent No,4 while passing the impugned order was not altogether illegal and unwarranted by law. Indeed as elaborated in the counter-affidavit this exercise on the part of the Deputy Land Commissioner, Hyderabad was necessitated as a result of a reference made by Colonization Officer, Guddu Barrage, Sukkur before the issuance of T 0. Form
9. Reverting to the second limb of the argument of the learned counsel that the petitioner was condemned unheard in that he was neither served with any notice nor afforded an opportunity of hearing suffice to say impugned order on the face of it recites that the declarant (petitioner) remained absent/in spite of repeated notices sent by registered post. Furthermore, at the title of the order there is a reference to notice dated 22-2-1974 and 27-3-1974 issued in the name of the petitioner. On the face of the record official acts are presumed to be correctly and regularly performed and the presumption of correctness always attaches to official acts more particularly to quasi-judicial acts. Purely this presumption is rebuttable but the petitioner has utterly failed to rebut the presumption, by not taking this plea in express words in the memo. Of petition spread over 13 pages and filed after lapse of nearly sixteen years. Mr. M.A. Rashid strenuously urged that notices even if issued to the petitioner were wrongly addressed and thus the presumption of their receipt by the addressee in terms of section 21 of the General Clauses Act would not arise. We regret to observe that there is absolutely no merit and substance in the submission of the counsel as the discrepancy pointed out in the address of the petitioner is trivial and negligible in nature. In the admitted address of the petitioner only discrepancy pointed out by the counsel is that instead of Al-Hamra Housing Society, "Al-Hamra Housing Society" was typed in the impugned order tending to show that the notices were incorrectly addressed. Entire address of the petitioner being substantially correct we are inclined to take judicial notice of the fact that there is no other society by this name on Tipu Sultan Road, Karachi. Even otherwise petitioner himself having not asserted this fact in the grounds of the petition, is legally debarred from raising this question of fact at the hearing of the petition. It may not be out of context to observe that even the memo. Of petition is signed by his attorney who also verified the memo. Of petition and purportedly engaged the counsel on behalf bf the petitioner
10. Taking up last contention of the learned counsel sub-Article (2) of Article 203-D of the Constitution dealing with powers, jurisdiction and functions of the Federal Shariat Court stipulates that if the Court decides that any law or provision of law is repugnant to the Injunctions of Islam, it shall set out in its decision (a) reasons for its holding that opinion and (b) the extent to which such law or provision is so repugnant; and specify the date on which the decision shall take effect.
Obviously the apex Court no doubt declared among others paragraph 10 of M.L.R. Repugnant to the Injunctions of Islam but had categorically specified that this decision shall take effect from 23rd March, 1990 whereupon the provisions declared repugnant to the Injunctions of Islam will cease to have effect. Irrespective of the mandate of law contained in sub-Article (3) of Article 203-D laying down the procedure for taking steps to amend the law in order to bring it in conformity with the Injunctions of Islam and no action having been taken, we are of the considered view that the law so declared shall cease to be operative from the date specified by the Supreme Court and shall not operate retrospectively. We are fortified in this view by a case from Lahore jurisdiction reported as Ali Hussain v. Mir Zaman 1987 CLC 127. Identical view was taken by one of us (Rana Bhagwan Das, J.) as well in Muhammad Ibrahim v. Mir Muhammad 1995 M LD 1962. A reference can also be made to a D.B. Case from 'Peshawar High Court reported as Farmanullah Hashim v. Government of Pakistan 1998 M LD 1883. Case of the petitioner having been decided as far back as June, 1974, petitioner can hardly seek shelter behind this verdict of the apex Court declaring the provision of law as repugnant to Injunctions of Islam Indeed his case is a past and closed transaction which cannot be reopened at this inordinately belated stage. Learned counsel was unable to convince us as to how the petitioner herein is entitled to the benefit of the declaration made by the Shariat Appellate Bench. Consequently there is hardly any merit in this submission of the learned counsel.
11. For the aforesaid facts and reasons petition must fail and is accordingly dismissed with costs