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Civil Revision No. 86 of 1962, decided on 9th July 1965.

[C. M. L. A's Regulation No. 64 of 1959], Paras 25 (4) & 4 read with Notification No. ASR‑468/62/3939 LC dated 16‑7‑1962 published in Gazette of West Pakistan dated 26‑2‑65‑Exchange of whole or part of area less than subsistence holding‑Valid, provided conditions laid down in Notification fulfilled‑Transaction made prior to publica tion of Notification ‑ Deemed valid ‑ Martial Law Regulation [C. M. L. A's], No. 64‑A.

[C. M. L. A's Regulation No. 64 of 1959], Para. 4(5)‑Order of Commission duly notified in official Gazette‑‑Deemed to be retrospective in effect.

Sh. Allah Bakhsh for Petitioner.

Shah Zaman Khan and S. Usman Ali Shah for Respondents.

Dates of hearing : 5th and 9th July 1965.

The question raised in this revision petition is, whether and exchange by a person who holds an area less than subsistence holding is hit by Martial Regulation No. 64 or 64‑A. This point, in my view, stands concluded by the Gazette of West Pakistan, dated February 26, 1965, issued by the Land Commission vide No. ASR‑468/62/3939‑L. C., dated the 16th July 1962, under which "a land owner, having less than the area of subsistence holding, has been authorised:‑---

(1) To alienate, by way of gift, the whole or part of his holding to any of his presumptive heirs, and

(2) To exchange the whole or any part of his holding with the area held by other land owners in the same village, deh or mauza.

2. It will be plain from reading of the notification, reproduc ed above, that exchange of whole or part of an area less than subsistence holding has been authorised, provided the other condition are fulfilled namely, that both the lands, which are the subject‑matter of exchange, are situate in the same village, deh or mauza.

3. Admittedly, the land, which is the subject‑matter of the presumption suit, giving rise to this revision petition and the land, which has been given in exchange, are situate in the same village, and, therefore, the exchange is not hit by the mischief of Martial Law Regulation No. 64 or 64‑A. Unfortunately, the notification, referred to above was not brought to the notice of the learned Courts below, who were, therefore, readily persuaded to hold that the exchange was hit by the provisions of Martial Regulation No. 64.

4. Mr. Dost Mohammad Kamil, learned counsel for respondent No. 2, tried to argue that since the notification of 26th February 1965, was issued long after the exchange, which is the subject matter of this revision petition, it would be prospective in opera tion and would not affect the exchange effected earlier. The argument, though spacious, does not bear scrutiny in view of para. 4, sub‑para. (5) of the West Pakistan Land Reforms Regulation.

5. It will be convenient to read sub‑paras. (1) and

(5) of para. 4 of the Regulation, which are as under:---

"4. Constitution of land commission and its powers.

(1) For carrying out the purposes of this Regulation, a Commission, to be called the West Pakistan Land Commission, shall be constituted, consisting of the Governor of West Pakistan, who shall ex officio be its Chairman and not more than five Members to be appointed by him.

(2)---------------------------------------------------------------,

(3) ---------------------------------------------------------------

(4) ---------------------------------------------------------------

(5) Where any matter is not provided for in this Regulation, or any difficulty arises in giving to the purposes of this Regula tion, the Commission may, by order notified in the official Gazette, make such provision in respect thereof as it thinks fit, and such order shall be deemed to form part of this Regulation and have effect accordingly."

6. It will be manifest from the language of sub‑para. (5) that were (1) any matter is not provided for in the Regulation, or (2) any difficulty arises in giving effect to the purposes of the Regulation, the Commission has been authorised to make such provision in respect thereof, as it thinks fit, and such order, after being duly notified in the official Gazette, "shall be deemed to form part of the Regulation and have effect accordingly." The concluding words in sub‑para. (5) in the brackets provide a complete answer to the argument tried to be raised, in that the order recorded by the Commission and duly notified, is deemed to have retrospective effect. To put it differently, whenever the Commission purports to act under para. 4, sub‑para. (5) the order, recorded by it and duly notified, shall have retrospective effect.

7. There is another aspect of the case, and it is that under para. 4, sub‑para. (6) of the Regulation, where any dispute arises in carrying into effect the provisions of the Regulation, such dispute shall be referred to the Commission whose decision shall be final. Assuming without holding, that the Gazette Notification dated 26th February 1965, was to be treated as prospective, there would definitely be a "dispute" within the meaning of sub- para. (6) and, therefore, the matter is to be referred to the Land Commission and its decision would be final. Since the Land Commission has made provision and notified it in the official Gazette dated the 26th February, 1965, it is to be regarded as the decision of the Land Commission having been taken within the meaning of para. 4, sub‑para. (6) and would be binding on the parties and under para. 27 of the Regulation, it cannot be called in question in any Court.

9. As a result of the foregoing discussion, I accept this revision petition and vacate the orders of the Court, below, declaring that the exchange was void, being hit by para. 25 (4) of the Regulation. In view of the difficult question of law, I make no order as to costs.

K. B. A. Petition accepted.

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