1. GHULAM SAFDAR SHAH, J.-These two leave petitions, which are directed against the consolidated judgment of Peshawar High Court, dated 9-1-1978, arise in the following circumstances :- Respondents I to 4 owned agricultural land, spread over a number of Mahals of Toi Assessment Circle, District Kohat. These lands were originally irrigated by Toi Nallah, but subsequently, after the compel--tion of Tanda Dam Project, the lands in question come to be irrigated by canal.
2. On the promulgation of Land Reforms Regulation 115 (in the year 1972), the respondents filed with the Deputy Land Commissioner, Kohat, their respective declarations who, calculating their lands at the rate of 55 Produce Index Units P. I. Us per acre, ordered that some portions of their land must be resumed. Being aggrieved of this order respondents filed before the Land Commissioner, N. W. F. P., Peshawar, an appeal contending therein that since their lands were not commanded by Tanda Project, the Deputy Land Commissioner had erred to calculate them at 55 P. I. Us per acre. It seems that the case of respondents was subsequently placed before the Provincial Land Commission which on 16-8-1972 issued Notification No. 1524 L. C. Showing therein that in exercise of powers conferred on it under paragraph 2(10) of M. L. R. I15 (as amended by M. L. R. 121) it has considered the case of respondents and consequently reduced the P. I. Us of their land from 55 P. I. Us. To 35 per acre. The record would show that in view of the said Notification, the Deputy Land Commissioner, Kohat, revised his previous orders accordingly. But the Federal Land Commission in the exercise of its suo motu jurisdiction reconsidered the case and by its order dated 19-10-1976 set aside the order of Provincial Land Commission as without jurisdiction and consequently restored the initial order of the Deputy Land Commissioner. Being aggrieved of this order, respondents filed in the High Court Constitutional Petitions which were accepted by the impugned judgment principally on the grounds (1) that the order of Provincial Land Commission was neither illegal, nor incorrect, nor improper, nor was it in excess of the jurisdiction vested in it under paragraph 2(10) of M. L. R. I15; and (2) that the lands of respondents could not be said to have their irrigation water from a perennial source and as such they could not be classified as Abi-Do---Fasli with 55 P. I. Us.
3. Per acre.
4. Khawaja Muhammad Tufail, the learned counsel for petitioners has assailed the impugned judgment on the same grounds which were urged in the High Court, namely, (1) that the Land Commission, N. W. F. P. Had no jurisdiction to sit in appeal over the initial order of Deputy Land Com--missioner: and (21 that the Federal Land Commission was competent under paragraph 29 of M. L. R. I15, to revise the said order of Provincial Land Commission in the exercise of its suo motu jurisdiction. In support of his contention the learned counsel relied on paragraph 2(10) and paragraph 4 of M. L. R. I15, which run as under :- "2. In this Regulation, unless there is anything repugnant in the subject or context --
(1) `Commission' means a Land Commission constituted under para--graph 4;
(2) ----------------------------------------------------------------------to
(9) -------------------------------------------------------------------------
(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 deter--mined, such measure as may be determined by the Commission for the Province within which such assessm ent circle or area is situated;
(11) -----------------------------------------------------------------------------
(12) ----------------------------------------------------------------------------- Provided that
4. Constitution of Land Commissions arid their powers.-(1) For carrying out the purposes of this Regulation, there shall be constituted for each Province a Commission to be known as the Land Commission of the Province concerned, consisting of the Chief Minister of that Province, who shall be its Chairman, and not more than three members, to be appointed by the Chief Minister.
(2) ------------------------------------------------------------------ to
(8) --------------------------------------------------------------------- It would be seen that according to sub-para. (10) of para. 2 (ibid) P. I. Us. Have been defined to mean-
(1) the measure in terms of which the comparative productivity of an area of land of a particular kind in a particular assessm ent circle or area is computed and expressed for the purposes of the schemed relating to the re-settlement of displaced persons on land, or
(2) was determined under the provision of sub-paragraph (10) of paragraph 2 of the repealed Regulation ; or
(3) in respect of an assessm ent circle or area where no such unit was determined; such measures as may be determined by the Commission for the Province within which such assessment circle or area is situated.
5. The learned counsel argued that in this case the Provincial Land Commission had no jurisdiction in the matter, for to respect of the lands in Toi Assessment, Circle, P. I. Us. Per acre had already been determined under the authority of West Pakistan Land Commission. In this respect he relied on a Book-let titled "Produce Indices for Districts of West Pakistan", published under the authority of West Pakistan Land Commission, at page 67 of which is x mentioned the following classification of lands of Toi Assessm ent Circle with their corresponding P. I Us. Per acre :- "Toi Chahi 50 Chashmi-Do-Fasli55 Chashmi-Ek-Fasli 47 Abi-Do-Fasli 55 Abi-Ek-Fasli 35 Sailabi 80 Talabi 42 Bandiza 32 Dogoba 22 Barani17 The admitted position, however, is that the lands of respondents have in the revenue record been classified as Shah Nehri of which no mention has been made in the above classification. The learned counsel, therefore, referred to paragraph 6(A) of the said Booklet which reads thus :- "(a) In case where .No produce indices are found prescribed for any particular class of irrigated or un-irrigated land the indices of the highest class of the irrigated or un-irrigated soil, as the case may be, shall be taken for the purpose of evaluating the area concerned.
(b) In case produce indices have not been separately provided even for irrigated or un-irrigated land, as the case may be, while any such category of land is actually , found to exist, highest produce index units of the same kind of soil in any of the adjoining Assessment Circle will be adopted for evaluating the area concerned."
6. Arguing on the basis of this paragraph, he pointed out that since the land of respondents was Shah Nehri, of which no mention has been made in the classification of Toi Assessment Circle, it bad to be classified as 'Abi---Do-Fasli', in view of the formula contained in paragraph 6(A) (a) of the Booklet. He conceded that under paragraph 2(10) (3) of M. L. R. I15, the Land Commission, N.-W. F. P., is empowered to assess the P. I. Us. Of any land in assessment circle or area where no such assessm ent has previously been made. But in this case, in which the land of Toi Assessment Circle had already been assessed, the said Commission had no jurisdiction to revise the order of Deputy Land Commissioner which was passed on the basis of said assessment. While dealing with this contention, it was noted by the High Court that whereas the findings of Federal Land Commission were not based on the physical check of the land in dispute, the Land Commission. N.-W. F. P. Bad, before it revised the order of Deputy Land Commissioner, detailed the Executive Engineer, Irrigation Division, Kohat, to carry out the physical check of the area and to submit a report on it. The judgment of High Court would show that the said Executive Engineer visited the site, carried out the physical check of the land of respondents and then submitted to the Land Commission, N.-W. F. P.
7. His report on the basis of which the Commission subsequently passed the following order :- "Whereas the Tanda Dam Band in Kohat district has been constructed in the year 1966-67, and no Produce Index Units have been prescribed in the Booklet P. I. J. For West Pakistan for the land irrigated from this Dam, and whereas due to inadequate supply of water from this Barani Band, the N. W. F. P. Land Commission in exercise of the powers conferred on it under paragraph 2(l0) of the M. L. R. I1S of 1972 as amended by M. L. R. I21 is pleased to prescribe 35 P. I. U. Per acre for the Shah Nehri Land situated in Toi Circle of Kohat District."
8. It would be seen that the Provincial Land Commission seems to have exercised jurisdiction in this case on the assumption that in the aforesaid Booklet no P. I. Us. Had been prescribed for the land irrigated by the waters of Tanda Dam. In this assumption, however, the Commission was evidently mistaken, for at page 67 of the said -Booklet the lands in Toi Assessment Circle had been assessed to P. I. Us, although there, is no mention in it of Shah Nehri land. In order to resolve this difficulty, however, paragraph 6(A)(a) of the Booklet in question was there to be resorted to. And this precisely is what the Federal Land Commission had done in this case. Therefore, had the matter rested there, perhaps there would be no difficulty to hold that the land Commission, N. W. F. P. Had misconceived the legal position in. Regard to its own jurisdiction. But the is not the case. There is nothing on the record of this case to show if an physical check of the area, where the lands of respondents are situated, had ever been carried out by or under the authority of any organ of the Federal Land Commission. To this extent, therefore, no exception could be taken4 to the same finding of the High Court. In order to justify his own findings, however, the learned Chairman, Federal Land Commission, has in para. 8 of his order referred to khasra girdawaris of the land in dispute for Kharif 1969 and Rabi 1970 in which the land was shown to be Nebri. Proceeding on this basis, and by taking into consideration paragraph 6 (A) (a) of the aforesaid Booklet, he-therefore, assessed it at 55 P. I. Us. Per acre observing that the land in question was `Abi-Do-Fasli'. It seems to have escaped hi notice, however, that at no time was any physical check of the land in dispute carried out by or under the order of the Federal Land Commission. And so paragraph 6(A) (a) would have no application to this case.
9. Furthermore, the plain language of paragraph 2 (10) of M. L. R. 115 would show that in order to be able to claim for paragraph 6(A) (a) of the aforesaid Booklet the force of law, the petitioners should have placed on the record of this case some material to show that a physical check of the land of respondents had been carried out at some stage or the other. The fact, however, is that there is no such material. And thus resort to para--graph 6(A) (a) of the aforesaid Booklet would be impermissible.
10. From all this, it would, therefore, follow that the order of Land Com--mission, N: W. F. P. Was in view of the peculiar facts of these cases, un--exceptionable. Therefore, the High Court was right to hold that by setting aside the said order the Federal Land Commission had exceeded its jurisdiction, These petitions, therefore, fail and are dismissed.