' CH. IJAZ AHMAD, J.---The brief facts, out of which the present writ petition arises are that late Khanzada Col. Abdul Karim, was a declarent under the Land Reforms Regulation, 1972 and the Land Reforms Act, 1977. The DLC Bahawalpur, vide order, dated 23-7-1977 determined the holding of the aforesaid declarant under the provisions of Land Reforms Regulation, 1972, resumed the excess land from him in favour of the Provincial Government under the said Regulation. The DLC Bahawalpur, by an other order, dated 13-12-1977, determined the holding of the aforesaid declarant under the Land Reforms Act, 1977 and resumed the excess land from him in favour of the Provincial Government under the said Act, as is evident from Annexures "A" and "B" attached with the writ petition. The mutations were also sanctioned in favour of the Land Commission vide Mutations Nos.39 and 40, which were sanctioned on 4-10-1977 and 19-1-1978 respectively. The Honourable Supreme Court has declared certain provisions of Land Reforms Regulation, 1972 and Land Reforms Act, 1977, against the Injunctions of Islam in Qazalbash Waqf's case PLD 1990 SC 99. The Honourable Supreme Court, fixed the target date to amend the law till' 23-3-1990. The competent authority failed to frame the law after the target date. The petitioners filed this writ petition on 10-4-1997.
Challenging the vires of the orders of the DLC and mutations sanctioned on the basis of aforesaid orders of the DLC.
2. The learned counsel for the petitioners submits that since the lands owned and possessed by the petitioners, have not yet been treated as subject-matter for disposal under the various disposal schemes, therefore, the same cannot be done now as the schemes are devoid of efficacy. He further submits that the provisions of the Land Reforms Regulation 115 of 1972 and the provisions of the Land Reforms Act, 1977, had already been declared unlslamic by the Honourable Supreme Court in Qazalbash Waqf case. Cut off date had already been expired. He further submits that the impugned orders are hit by Article 23 of the Constitution. In support of his contentions, he relied upon an unreported judgment of Balochistan High Court in Sardar Muhammad Jafar Khan Laghari's case decided on 8-11-1995. He further submits that the principle of locus poenitentiae is not attracted as the lands in question of the petitioners were not distributed by the commission to the landless people. The commission has no authority after the target date prescribed in the Qazalbash case to transfer the land to the landless people under the provisions of the Land Reforms Regulation, 1972 and Land Reforms Act, 1977.
3. The learned counsel for the respondents Nos.1 to 3 submits that the matter had been finally decided by the DLC in the year 1977, whereas the petitioners had filed this petition on 30-4-1997, therefore, the same may be dismissed on the well known principle of lathes. He further submits that the DLC had resumed the land from the original declarent. The order of the DLC was not challenged before any higher forum by the original declarent or by the petitioners, therefore, the writ petition is liable to be dismissed on the well-known principle of past and close transaction. The learned counsel for the respondents Nos.4 to 9, supported the petitioner's counsel.
4. We have considered the contentions of the learned counsel for the parties and perused the record ourselves. It is better and appropriate to reproduce the material facts in chronological order to resolve the controversy between the parties.
(i) Land of the original declarant was resumed by the DLC under the provisions of Land Reforms Regulation 115 of 1972 vide order, dated 23-7-1977.
(ii) The DLC had also resumed the land of the original declarent under the provisions of the Land Reforms Act, 1977 vide order, dated 13-7-1977.
(iii) Mutation No,39 was sanctioned in favour of the commission on 4-10-1977.
(iv) Mutation No,40 was sanctioned in favour of the commission on 19-1-1978.
(v) The provisions of Martial Law Regulation 115- of 1972 and provisions of Land Reforms Act, were declared unlslamic by the Honourable Supreme Court in Qazalbash Waqf's case supra PLD 1990 SC 99 on 10-9-1989.
(vi) The Honourable Supreme Court fixed the target date to frame the law as 23-3-1990 in the Qazalbash's case.
(vii) The writ petition was filed on 10-4-1997, and the same is liable to be dismissed on the well- known principle of laches as the petitioners did not file the writ petition immediately after the target date i,e, 23-3-1990 as per the principle laid down by the Honourable Supreme Court in Khiali Khan v.
Haji Nazir and 4 others PLD 1997 SC 304.
' In the interest of justice, we also intend to decide the controversy on merits. "Whether the petitioners are entitled to get the benefit of the judgment of the Honourable Supreme Court in the Qazalbash's case (supra). The controversy has been finally decided by the Honourable Supreme Court in Chief Land Commissioner Punjab v. Ch. Atta Muhammad Bajwa 1991 SCM R 736. The relevant observations are as follows:-- "The decision of the Shariat Appellate Bench of this Court in the case of Qazalbash Waqaf will not directly affect the adjudication in this case because the Courts' order referred to itself in paragraph 7 made the following reservation:-- ' The operation of the self-executory provisions of the Regulation and the Act, and the provisions ancillary thereto shall not in any manner be affected by this decision till the aforesaid provisions cease to have effect i,e, 23-3-1990'.
The provision invoked against the appellants being a self-executory provision, does not await the decision of any authority or Court for having effect. It is only the interpretation, the exclusion or the limitations which can be decided upon by the Court and not the operation of law as such.
16. For the same reason, the subsequent action of the Board of Revenue would not be of avail against the Land Commission because such excess land would vest by the operation of the law in the Land Commission itself divesting the Board of Revenue of its jurisdiction in the matter. The procedural determination of the exact area to be resumed or to be left with the Grantee is a matter that can he dealt with any time by the authorities competent to deal with it.
17. In the circumstances, this appeal is accepted. The judgment of the High Court is set aside and the writ recalled, the Constitutional petition filed by the respondents Nos.1 to 11 against the order of the Federal Land Commission is dismissed."
' Reference can also be placed on the following unreported judgment:-- ' Muhammad Tahir Shah and others v. Federal Land Commission, judgment, dated 10-7-1991 in Civil Appeal No,292 of 1976 and others. The relevant observation is reproduced herein:-- "In the written arguments submitted in Appeals Nos.292, 293, 847, 848 and 139, reference has been made to the judgment of this Court in the case of Qazalbash Waqf v. Chief Land Commissioner PLD 1990 SC 99 whereby the Shariat Appellate Bench has declared certain provisions of the Regulation, particularly paragraphs 7, 8, 9, 10, 13 and 14, to be repugnant to the Injunctions of Islam. It is contended that in view of this judgment the gifts which were effected by paragraph 7 of the Regulation must now be treated to .Have been properly and validly made. This contention is without any merit. As pointed out in the judgment itself the declaration given therein was to take effect on 23-3-1990 and such provisions of the Regulation which were self-executory were not to be any manner affected thereby. In this context reference may be made to the observations of two of the learned Judges who delivered separate opinions in the aforesaid case. Thus, Muhammad Afzal Zullah, J., (as.His Lordship then was) observed:-- "However, I am of the view that the decision of this Court shall not affect those cases in which any decisive step has been or is now taken in the ordinary normal course at any stage of the proceedings, in implementation of the provisions which would cease to have effect as a result of the Court order, prior to the date to be fixed therein."
' Similarly, Shafiur Rehman, J., observed:-- "As most of the provisions found repugnant to Islam happen to be self-executory, they have of their own force taken effect, accomplished the object of the legislation leaving the mere implementation of it, to be completed on the strength of machinery provisions. Such self-executory provisions will remain unaffected by this decision. However, those provisions which have a prospective effect also and are not self executory, shall get annulled from the date the decision declaring them repugnant to the Injunctions of Islam taken effect." .... Even if some of the appellants have yet not surrendered the excess land it would not make any difference for now it is a question of merely implementing the orders already passed by competent authorities. In the circumstances, the appellants cannot take advantage of the judgment in the Qazalbash Waqaf's case."
' In Malkani Mumtaz Begum v. Province of the Punjab, the judgment, dated 1-3-1993 in Civil Appeal No,897 of 1990, the relevant observation is as follows:-- "It is to be noticed that in Qazalbash Waqf's case the Shariat Appellate Bench of this Court had found certain provisions of the Land Reforms Act to be contrary to the Injunctions of Islam and had declared that these provisions would cease to be operative after 23-3-1990. It was further observed:-- 'The operation of the self-executory provisions of the Regulation and the Act, and the provisions 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'.
' The judgment in the case of Muhammad Tahir Shah merely gave effect to these very Observations. Thus, the question of any conflict between the two judgments does not arise. In the appeal before us the appellant's liability to surrender excess land stood finally determined long before 23-3-1990 which was the date on which the declaration granted in the Qazalbash Waqf's case was to become operative. She cannot, therefore, take advantage of the said judgment... The judgment in Qazalbash Waqf's case does not declare the provisions of section 28 ibid to be against the Injunctions of Islam. These could not in any case be regarded as incidental as a large number of cases had been decided long before the delivery of the judgment in Qazalbash Waqf's case. It could not, therefore, be said that there was now no bar in the way of the civil Courts from dealing with the matters which become final prior to the date fixed in Qazalbash Waqf's case."
' Aforesaid case of Qazalbash was also considered by the Honourable Supreme Court in Federal Land Commission, Cabinet Secretariat, Islamabad v. Sardar Noor Ahmad Khan and 7 others 1999 SCM R 2697. The relevant observations are as follows:-- "In the instant case, the O.S.D. Passed the order in exercise of his suo motu revisional jurisdiction on 26-10-1976. Mr. Muhammad Mahmood Bhatti, learned Advocate Supreme Court for the respondents, was unable to persuade us that the judgment of the Federal Land Commission impugned before the High Court was hit by the law laid down in Qazalbash Waqf (supra). It is clearly pointed out in the case of Qazalbash Waqf (supra) that the declaration given therein was to take effect on 23-3-1910 and as such the provisions of the Regulation which were as executory were not to be, in any manner, affected thereby. Refer Chief Land Commissioner Punjab v. Chief Administrator of Auciaf Punjab (PLD 1998 SC 132). Thus visualized, the decision rendered by the Federal Land Commissioner on 26-10-1976 could not be declared as without lawful authority in the writ petition filed in 1977 though decided on 29-3-1994, in view of the decision of the Federal Shariat Court in Qazalbash Waqf (supra) and decision of the Shariat Appellate Bench of this Court in Qazalbash Waqf (supra)."
5. It is settled principle of law that the judgment has prospective effect and not retrospective effect.
In arriving to this conclusion, we are fortified by Muhammad Yousaf's case PLD 1968 SC 101. The judgment cited by the learned counsel for the petitioner of Balochistan High Court, is not in accordance with the law laid down by the Honourable Supreme Court in the aforesaid judgments.
It is pertinent to mention here that the aforesaid judgments were not cited before the Division Bench of the Balochistan High Court. The land was vested automatically to the Land Commission of the Province free from any encumbrance or charge by virtue of section 9 of the Land Reforms Act,- 1977. Subsequently, the disposal of the surrendered land under section 15 to the tenants is a ministerial function of the Commission. It is an admitted fact that the DLC had passed the orders against the original declarant in the year 1977, therefore, the principle of past and close transaction is fully attracted in the present case. In arriving to this conclusion, we are fortified by the law laid down in Miani Sahib's case PLD 1973 SC 17. Once an undisputed piece of the land is wilfully surrendered by a land owner and is duly resumed, it ceases to be property of the affected land owner, on passing of the order in 1977 by the Deputy Land Commissioner under section 7(5) of the Act, excess land, forthwith vested in the Government in view of the provisions of section 9(2) was certainly executory and had taken effect long before the target date of 23-3-1990, from which date, the law was to cease to operate to the extent of repugnancy as per the principle laid down in Chief Administrator of A uqaf Punjab v. Federal Land Commission PLJ 1994 Head Notes 37 (sic).
' In view of what last been discussed above, this petition has no merits and is hereby dismissed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.