' CH. IJAZ AHMAD, J.---Brief facts, out of which present writ petition arises are that the petitioner's father was owner in agricultural land in Tehsil Depalpur, District Okara and Tehsil Hafizabad. The father of the petitioner dies on 30-10-1957 and the landed property was owned by the father of the petitioner which is inherited by his legal heirs who are as under:- {{DATA MISS ARANGE}}
(i) Col. Mukhtar Hussain
(ii) Major Nadir Hussain
(iii) Sons of original owner. Daughters of original owner Iqbal Hussain
(iv) Shaukat Hussain
(v) Syed Said Hussain, petitioner
(vi) Syeda Akhtari Begum
(vii) Syeda Asghari Begum (viiii)Syed Khawar Sultana
(ix) Mst. Nazir Sultana widow of original owner.
' Syed Ashiq Hussain, father of the petitioner in his lifetime had transferred some of his land in the year 1950 situated in Ashiqabad, Chahhat Shergarh, Iqbalpura, Boharwala, 19-A/A-L and Kot Nadir Shah to mentioned above legal heirs. The petitioner and his father through family arrangement, distributed the land in the year 1963 amongst them. The family arrangement was incorporated in the Revenue Record in the name of the petitioner and his brother, and the possession of their shares was also transferred to them. In view of family settlement, the "petitioner did not own any land in village Ashiqabad and 19-A/1-AL, therefore, the petitioner had relinquished his Lambardari in favour of his real brother Syed Shaukat Hussain in the aforesaid two villages, without proceeding under the Land Reforms Regulation, 1972 which came into force at 11 once i,e, on 11-3-1972. The petitioner under the provision of aforesaid Land Reforms Regulation, submitted his declaration form before the D.L.C. Concerned. The D.L.C. Concerned respondent No,3 vide his order, dated 3-5- 1973 held that the petitioner is holding excess PIUS units. He was directed to surrender 4140 PIUS units being surplus which is attached with the writ petition as Annexure "A". The petitioner being aggrieved filed an appeal before the Land Commissioner, respondent No,2, who rejected the same vide order, dated 13-9-1973. The petitioner being aggrieved filed appeal before Chief Land Commissioner, who also dismissed the same vide order, dated 7-5-1974. Subsequently, the petitioner filed a revision before the Federal Land Commissioner, who also dismissed the same vide order, dated 14-9-1974. The petitioner being aggrieved filed Writ Petition No,1917 of 1974 which was also dismissed in limine by this Court vide order, dated 23-12-1974. Thereafter, the petitioner being aggrieved, filed C.P.S.L.A. No,148 of 1975 before the Honourable Supreme Court and was granted stay order vide dated 21-5-1975 in respect of transfer of the possession. Subsequently, the petitioner had withdrawn the aforesaid C.P.S.L.A. Before the Honourable Supreme Court.
2. Mst. Nazir Sultana, mother of the petitioner gifted the land in favour of the petitioner and Mutation No,35 was entered and sanctioned in favour of the petitioner on 20-9-1968 by the Revenue Officer.
The petitioner filed a review petition before the Revenue Officer for setting aside Mutation No,35 before D.C. Sahiwal/D.L.C. Who granted the sanction of Revenue vide order, dated 6-3-1975.
Subsequently, the A.C. Depalpur accepted the review petition vide order, dated 5-3-1974. The land was mutated in the name of the legal heirs. The entry in the Revenue Record consisting of Khasra Girdawari and Jamabandi was incorporated in the year 1976. The mother of the petitioner also filed a suit for 'declaration to the effect that her land measuring 126 Kanals and '10 Marlas was never gifted by her to the petitioner and Mutation No, 35, dated 28-12-1970 is illegal non-existing.As gift, was never made and possession was never transferred to the petitioner. The Mutation No,35 was reviewed and set aside by the Revenue Authority and land in question was reverted to all the legal heirs i,e, Mst. 'Nazir Sultana mother of the petitioner and other legal heirs of her husband. Ceiling of the petitioner reduced automatically after acceptance of the review petition filed by the petitioner.
The mutation in question was reviewed as it was void being hit by para. No,24 of Martial Law Regulation 115 and dues of the District Council was not paid. The suit was decreed by the consent by the Civil Judge vide judgment and decree, dated 25-1-1979. The decree of the Civil Court was duly incorporated in the Revenue Record. The petitioner being aggrieved challenged the vires of the orders of D.L.C. CLC and Member of Federal Land Commission through this writ petition.
3. The learned counsel of the petitioner submtis that petitioner has no excess units under the provision of Land Reforms Regulation, 1972. Mutation No,35 which reveals that mother of the petitioner had - gifted the land measuring 1263 Kanals and 10 Marlas in favour of the petitioner vide Mutation No,35 dated 28-12-1970 and the same was set aside by the Revenue Authority on the pound that mutation in question was hit by para. 24 of M.L.R. 115 of 1972. He further submits that mutation in question was also set aside by the consent decree, dated 25-1-1979 passed by the competent Court. The judgment of the Civil Court shall prevail upon order of the Land Reforms Authority. He further submits that para. No,7 of the M.L.R. 115 had already been declared repugnant to Injunction of Islam by the Honourable Supreme Court in PLD 1990 SC 99. The review petition filed by the aggrieved person, had also been dismissed by the Honoforable Supreme Court reported in Government of Pakistan Ministry of Law v. Qazalbash Waqf and others 1993 SCMR 1697. He further submits that possession of the land in question was not taken from the petitioner, therefore, the respondents had no authority whatsoever to take possession of the land in question froni the petitioner after cut of date fixed by the Honourable Supreme Court in Qazalbash Waqf v. Chief Land Commissioner, Punjab PLD 1990 SC 99. He further submits that principle, of past and close transaction is not attracted in the present case as possession of the land was not taken from the petitioner. In support of his contention, he relied upon Chief Land Commissioner, Punjab v. Chief Administrator of Auqaf Punjab PLD 1998 SC 132. He further submitts that writ petition cannot be dismissed on the ground of laches. In support of his contention, he relied upon Mubarik Ali Bhatti v.
Fayyaz Ali PI D 1963 Lah.
8.
4. The learned counsel of the respondents submits that writ petition is liable to be dismissed on the well-known principle of laches. He further urged that writ petition is also liable to be dismissed on the well-known principle of past and closed transaction. He further urged that Honourable Supreme Court, decided the case of Qazalbash Waqf on 10-8-1989 and certain provisions of Land Reforms Law were declared against the Injunction of Islam and also fixed cut of date to the extent that provisions of law would cease to be operative w,e,f, 23-3-1990. In the present case, resumption order was passed by the Deputy Land Commissioner on 3-5-1973. The order of the Deputy Land Commissioner was upheld up to apex Court of this country. In support of his contention, he relied upon unreported judgment of this Court in Writ Petition No, 2057 of 1997, decided on 9-7-2001 and unreported judgment of the Honourable Supreme Court in Civil Petition for Leave to Appeal No,1142- L of 1992.
5. Learned counsel of the petitioner in rebuttal submits that principle of laches and principle of past and closed transaction are not attracted in the present case as the petitioner did not exercise his choice with regard to surrender of his land in question to the Land Reforms Authority. The possession of the land in question is still with the petitioner, therefore, the Land Reforms Authority have no authority whatsoever under the law to take action against the petitioner in view of law laid down by the Honourable Supreme Court in the following judgments:- ' Qazalbash Waqf v. Chief Land Commissioner PLD 1990 SC 99 and Chief Land Commissioner, Punjab v. Chief Administrator of Quqaf Punjab PLD 1998 SC 132.
6. We have given our anxious considerations to the contentions of the learned counsel of the parties and perused the record ourselves.
7. It is admitted fact that the matter has been finally decided up to apex Court on the side of Land Reforms Regulations. The Honourable Supreme Court declared certain provisions of Land Reforms Law which are against Injunction of Islam in Qazalbash Waqf's case which was decided by the Honourable Supreme Court on 10-8-1989. The petitioner filed writ petition on 8-12-1994, therefore, the writ petition is liable to be dismissed on the ground of laches. In arriving to the conclusion, we are fortified by the following judgments:- - ' Khiali Khan's case PLD 1997 SC 304 and Khushi Muhammad's case 1982 SCMR 866.
It is also settled principle of law that Constitutional jurisdiction being equitable jurisdiction cannot be exercised in favour of a person, who has come to the Court with gross negligence. We are fortified by the judgment of the Honourable Supreme Court in Mohsin Khan's case 1969 SCMR 306 and Suleman Khan's case 1970 SCMR 574. It is admitted fact that the matter has been finally decided between the parties upto apex Court under the provisions of Land Reforms Regulation, therefore, the writ petition is liable to be dismissed on the well-known principle of res judicata as per principle laid down by the Honourable Supreme Court, in Pir Bakhsh's case PLD 1987 SC.
145. It is pertinent to "mention here that principles of C.P.C. Are applicable in Constitutional proceedings, therefore, writ petition is not maintainable in view of section 11 of the C.P.C. The question of law has already been settled by the D.B. Of this Court in case Chief Administrator of Auqaf, Punjab v. The Federal Land Commission and 8 others PLD 1994 Lah. 50 and laid down following principle:-- "As has already been observed on the passing of order, dated 27-2-1978 by the Deputy Land Commissioner under the provisions of subsection (5) of section 7 of Act, the excess land forthwith vested in the Provincial Government and due to this characteristic of this provision of law it can safely be held that the same, was certainly 'self-executory provision' having taken effect long before 23-3-1990 the date fixed in Qazalbash case with effect from which the law was to cease to operate to the extent of repugnancy.
' Merely because further steps were yet to be taken to implement the 'self-executory provisions' of the Act such as separation of excess land from the land to be retained by the petitioner within the permissible limits does not have the effect of rendering the said provision of law as also legal effect of order dated 27-2-1978 as non-self-executory or exclusion of the same from the purview of the said expression. This view finds support from judgments delivered by the Supreme Court in Civil Appeals Nos.292 and 293 of 1976 in which identical questions were raised and it was held as under:-- ' Therefore, -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 Waqf case'.
' Yet in another case reported as the Chief Land Commissioner, Punjab, Lahore and another v. Ch. Atta Muhammad Bajwa and others 1994 SCMR 736 it was held as under:-- ' The provision invoked against the appellants being a self-executory prevision, does not await the decision of any authority or Court for having effect. It is only the interpretation, the exclusion or the limitation which can be decided upon by the Court and not the operation of law as such'.
' A similar view was taken in a case reported as the Chairman, Federal Land Commission, Islamabad and another v. Akhtar Abbas PLD 1989 SC 550 and the above rule laid down was re- affirmed."
8. The aforesaid proposition of law is also supported by the following judgment of the Honourable Supreme Court reported as The Chief Land Commissioner, Punjab, Lahore and another v. Ch. Atta Muhammad Bajwa and others 1994 SCMR 736. After considering the judgment of the Shariat Appellate Bench, the Supreme Court of Pakistan in Qazalbash Waqf's case. Mr. Justice Shafi-ur- Rahman observed as follow:- "The decision of the Shariat Appellate Bench of this Court in the case of Qazilbash Waqf will not directly affect the adjudication in this case because the Court's order referred to itself in paragraph 7 made the following observation:-- ' The operation of the self-executory provisions of the Regulation and the Act, and 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 provisions 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'.
' The Supreme Court of Pakistan had also considered the authority reported as PLD 1990 SC 99 Qazalbash Waqf's case while delivering judgment dated 10-7-1991 in Civil Appeals Nos.292 and 293 of 1976 139, 847 of 1984 and 369 of 1988 (Muhammad Tahir Shah and others v. Federal Land Commission and others) and held as under:-- ' It is to be noted that by the force of paragraph 7 of the Regulation itself all gifts, leaving aside those which were expressly saved, became void. The declaration submitted by the donors already stand scrutinized and the lands covered by the gifts have been treated as part of their holdings.
Therefore, if some of the appellants have not yet surrendered the excess land, it would not make any difference for now it is a question of merely implementing the orders already passed by the competent Authorities. In the circumstances, the appellants cannot take advantage of the judgment of the Qazalbash Waqf's case."
9. It is true and undeniable that the Supreme Court of Pakistan in Qazalbash Waqf's case held certain provisions of the Land Reforms Act, 1977 to be violative of the Injunctions of Islam as ordained by the Holy Qur'an and Sunnah and that judgment came into force on 23-3-1990 but the question arises as to the effect of the declaration of law as un-Islamic in the matters pending at that time or thereafter. The answer to, this question is to be found in the same judgment wherein Muhammad Afzal Zullah, J. (as he then was) observed as under:-- "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."
' Again in the same judgment Shafi-ur.Rahman, J. (as he then was) made the following observations:-- "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."
10. In view of the above dictum, it becomes necessary to determine as to whether in the present case any decisive step had been taken before 23-3-1990 when the judgment of the Honourable Supreme Court was ' to become effective. On the basis of the record, it cannot be denied that much earlier to the aforesaid date i,e, 27-5-1972, the land of the petitioner was resumed by the Deputy Land Commissioner and thereafter, vide order dated 3-5-1973, the petitioner was directed to give choice of the surrendered area equal to 4140 PIUS units within 7 days. These proceedings were admittedly finalized upto the apex Court, before the target date mentioned by the, honourable Supreme Court in the aforesaid Judgment of Qazalbash i,e, 23-3-1990. The decisive step under the provisions of Land Reforms Law has already been taken. That being so, the case against the petitioner was not covered by law declared by the Supreme Court of Pakistan in Qazalbash Waqfs case, meaning thereby the land which was subject-matter of present controversy of the petitioner had vested in the Provincial Government under the selfexecutory provisions of the Land Reforms Law and resumed long before 23-3-1990. It being a past and closed transaction was not affected by the judgment of the Shariat Appellate Bench, the Supreme Court of Pakistan in Qazalbash Waqfs case. In arriving to this conclusion, we are fortified by Miani's case PLD 1973 SC 17. The aforesaid proposition of law was again considered by the Honourable Supreme Court in Federal Land Commission Cabinet Secretariat, Islamabad v. Sardar Noor Ahmad Khan and 7 others 1999 SCMR 2697. The relevant observations are as under:-- "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 23-3-1990 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 Auqaf Punjab (PLD 1998 SC 132). Thus visualized, the decision rendered by the Federal Land Commission 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 Waqfs case (supra).
11. It is also settled principle of law that judgment of the Honourable Supreme Court has prospective effect not retrospective effect. In arriving to this conclusion, we are fortified by law laid down in case of Muhammad Yousaf v. Chief Settlement and Rehabilitation Commissioner PLD 1968 SC 101.
12. We have taken the aforesaid view in Writ Petition No,2057 of 1997 decided on 9-7-2001, therefore, we are not in a position to deviate from law and our own view on the well-known principle of consistency as per principle laid down by the Honourable Supreme Court in Muzaffar Khan's case PLD 1959 SC 9.
13. The consent decree secured by the petitioner is also not in accordance with law laid down by this Court in case Ghulam Mehr v. Chief Land Commissioner Punjab, Lahore and 2 others PLD 1974 Lah.
520. It is pertinent to mention here that this judgment was upheld by the Honourable Supreme Court. The judgments cited by the learned counsel of the petitioner are distinguished on facts and law and are not relevant. It is also settled principle of law that each and every case is to be decided on its circumstances and facts.
14. In view of what has been discussed above, this writ petition has no merit and the same is dismissed with no order as to costs.