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Civil Appeal No. 114 of 1964, decided on 29th March 1966.

(On appeal from the judgment and order of the High Court of West Pakistan, Karachi Bench, Karachi, dated 19th April 1963, in Writ Petition No, 765 of 1962).

Art. 58 (3) leave

to appeal to Supreme Court-Granted on the ground that the matter whether "Lakes" fell within ambit of the West Pakistan Land Reforms Regulation, 1959.

para. 4(6) Dispute whether "lakes" were included in "land" which Government as entitled to resume under Regulation-Land Commission entitled to decide the dispute-[Decision treated lakes as land which was to be 60aallowed for in terms of produce index units at a certain rate].

r. 11-Review Period of limitation, viz. "10 days", applies only to an application by an interested party, and not to suo motu review.

, para. 14 read with para. 27 - (Choice of owner to retain particular parcel of his estate)-"Lakes" forming part of estate but decision not taken by Land Commissioner whether "lakes" were "land" within scope of Regulation-Owner reserving his right to claim to certain "lakes" by way of exchange if and when Land Commission decides the question-Use of expression "exchange" cannot determine relief owner may claim under law Owner may revise his choice of land in such case-Selection entirely at option of owner-Existence of "joint rights" in land retained not a factor operative against such option-Immunity granted by para. 27 to orders made under Regulation extends only to such orders as are made "in accordance with Regulation in its relevant provisions"-Constitution of Pakistan (1962), Art. 98 High Court has jurisdiction to declare an order as made without lawful authority, which is not "in accordance" with Regulation. [pp. 609, 610, 611 ] D, E, F, G, H & I Qureshi Mahmud Ahmad, Advocate Supreme Court, instructed by Wali Muhammad Senior Attorney (absent) for Appellant.

Kazi Akhtar Ahmad, Additional Advocate-General, West Pakistan instructed by Shafiq Ahmad Senior Attorney for Respondent.

Dates of hearing: 16th and 29th March 1966.

-The facts of the case out of which this appeal by special leave arises may be stated as follows. In compliance with a notification by the Land Commission set up under Martial Law Regulation No. 64 (the West Pakistan Land Reforms Regulation), the appellant Nawab Haji Khair Muhammad Khan, who was owner of extensive estates in the Hyderabad and Nawab Shah Districts filed forms indicating what land he wished to retain in each district. This he was entitled to do under paragraph 14 of the Regulation, which sets out that a person whose estate was liable to diminution under the Regulation was entitled after he had retained any area under an orchard, and after he had exercised his right to make gifts in favour of dependents to "select gut of his holding the area which he is entitled to retain, and, in doing so, shall, as far as possible, select compact blocks of not less than the size of an economic holding." In the forms which he submitted on the 13th April 1959, the appellant did not mention a large area of which he was owner, which was covered by a lake. That is the property which is the subject-matter of dispute in this appeal. He did not mention this property, because he believed that it was not included within the definition of "Land" contained in the Regulation. Up to that time, no decision had been taken by the Land Commission as to whether or not lakes were to be treated as land for the purposes of the Regulation. Such a decision was taken for the first time on the 4th September 1959, when it is recorded that the Chief Land Commissioner informed the Land Commission "that lakes will have to be resumed like other Ghair Mumkin Land" and this was adopted by the Commission. Ghair Mumkin land was evaluated in terms of produce index units at units per acre. However, this matter was reviewed and on the 24th September 1959, a decision was taken by the Land Commission that a lake area was to be assessed at the of the lowest measure provided for other land in the same assessment circle. Thereafter, on the 21st December 1959, the appellant made an application to the Commission stating that he wished to retain the lake in question, and was willing to surrender other land in lieu thereof. On the 22^nd January 1960, a Deputy Land Commissioner informed him that his request "cannot be considered at this stage." He preferred an appeal on the 1st February 1960, before the Land Commissioner, Hyderabad, which he rejected on the 6^th February on the ground that it was too late. Thereafter, he moved a revision before the Chief Land Commissioner, who on the 9th April 1960, granted the prayer and allowed him "to retain the area in dispute and surrender an area of equal produce index units from his ceiling." The grounds for this order were briefly stated. The petitioner was not aware of the new instructions relating to lakes, when he fixed his "ceiling", that is to say, made his choice under paragraph 14 of the Regulation. By choosing to retain the lake on account of the low valuation of the area "he would get more area in his ceiling on the one hand and, on the other, the Land Commission would get agricultural area instead of the lake". The Chief Land Commissioner thought the petitioner's request to be reasonable one, and observed, significantly, that the land surrendered by him could be utilized for settling tenants, and as for the landlord, he "will be able to get his existing area consolidated." This order was made by Mr. Ahsanuddin on the 9th April 1960. It was reviewed more than two years later by Mr. I. U. Khan, who had replaced Mr. Ahsanuddin as Chief Land Commissioner. The review was made suo motu. By an order dated the 31^st July 1962, the Chief Land Commissioner set aside the order of Mr. Ahsanuddin "through which the respondent was allowed to exercise fresh choice." The grounds for reversal of the earlier order were briefly as follows. "There was no force in the contention of counsel for the present appellant that a lake did not fall within the definition of land in the Regulation, since in the revenue records, on the basis of which the land reforms were being worked, takes have had always been described as Ghair Mumkin. The argument was raised that the fact that the Government was part owner of the bed of the lake should not debar the making of "afresh choice" and to this the reply was made that under instructions issued by the Land Commission fresh choices were to be confined to the same village, whereas in this case, the lake was "not even situated in the same district." The making of a fresh choice was debarred by orders of the 18th February 1961, a date, it may be noted, which is subsequent to that on which the present appellant made his choice of the lake."

Against this order, which was qua the Regulation a final order, a writ was moved in the High Court, which was heard by two learned Judges. Among the questions raised before the High Court, two are of principal importance for the purposes of this appeal. It was argued that the review order of Mr. I. U. Khan was made beyond the time provided for the purpose by the rules under the Regulation. By rule 10, a time limit of 10 days was provided, and the order of Mr. I. U. Khan was made long after the lapse of this period. The learned Judges found it possible to hold that Mr. I. U. Khan's order was in time on the basis of a variation of punctuation in the wording of the rule made by themselves as well as of a reference to a decision of this Court in the case of Sahibrai (P L D 1957 S C (Pak.) 63). The argument on the merits was that the land owner was not entitled to exercise a fresh choice after the order had been made by the Land Commission that lakes were hit by the Regulation.

The latter contention, which was one of substance was dealt with by the learned Judges in the following manner. They purported to find an inconsistency between the contention that lakes did not fall within the purview of the Regulation and the claim of right to exercise a fresh choice, under the Regulation, which choice involved treatment of the lake as land. The final conclusion on the point as to the right to a fresh choice, which was claimed, was expressed in the following words:-

"We, pointed out to counsel the inconsistencies of his argument, and he explained by saying that they were excusable, because he wanted to meet all possible arguments that could be advanced from the opposite side, and that in doing so, he might appear to be contradicting himself. His attempt may be excusable, but the consequence is that his contentions destroy each other and fizzle away into nothing."

The petition for the writ being dismissed, special leave to appeal to this Court was granted on the consideration that it was a matter of public importance whether lakes fell within the ambit of the Regulation. We have heard Mr. Qureshi Mahmud f Ahmad for the appellant, and Mr. Kazi Akhtar Ahmad, Additional Advocate-General on behalf of the Chief Land Commissioner.

The point whether lakes fall within the definition of land may be briefly disposed of. Under paragraph 4, sub-paragraph (5) of the Regulation, it is laid down that when any matter arises for decision which is not provided for in the Regulation or any difficulty arises in giving effect to the purposes of the Regulation, the Commission may by notification in the official Gazette make such provision in respect thereof as it thinks fit, and the order it makes will be deemed to form part of the Regulation. This provision may conceivably be thought not to be available by reason of the absence of notification in the official Gazette, but sub-paragraph (6) of the same paragraph is in wider terms, viz., that when any dispute arises in carrying into effect any provision of the Regulation, such dispute shall be referred to the Commission, whose decision thereon shall be final. Here, clearly B a dispute arose as to whether lakes were to be included in the land which Government was entitled to resume under the Regulation, and the decision of the Commission is clear, namely, that it was to be treated as land, and allowed for in terms of produce index units at a certain rate.

The point of limitation is also capable of resolution on a simpler basis than that adopted by the High Court. The wording of rule 11 in its relevant part is as follows:-

"The Chief Land Commissioner . . . . . may of his own motion or on an application of any party interested made to him in that behalf, within ten days from the date of the order, review, and on so reviewing modify, reverse or confirm, any order passed by himself or by any of his predecessors in office."

It should be quite clear from the fact that power is given to the Chief Land Commissioner to interfere in review with an order passed by "any of his predecessors in office" that a limitation of 10 days between the date of the order reviewed and the reviewing order cannot conceivably have been contemplated. It is quite obvious that the period of 10 days from the making of the order is to apply only to the making of an application fo review by an interested party. Therefore, the order of Mr. I. t. Khan cannot be held vitiated on the ground of limitation.

But as to the making of a fresh choice, we find it impossible to sustain the decision of the learned Judges, or to approve of the argument by which that result was achieved. The purpose of the writ was to save the lake from being resumed by the Government, and it was open to the party interested to present any grounds upon which, in law, the action of resumption could be thought to be ultra vires. A claim to keep property because it is not affected by the Regulation is not inconsistent with assertion of a right to select it for retention, in case it is held to be so affected.

As has been indicated above, Mr. I. U. Khan himself had treated the order of his predecessor as being one allowing the present appellant to exercise a fresh choice. He, however, dealt with the matter as if it lay in the field of exchange of one piece of property for another. If the history of the case of the present appellant had been examined, a different and a clearer view would undoubtedly have been taken. In his applications of the 13th April 1959, the present appellant had expressed a preference for retaining his Jagir land. At that time, no decision had been taken by the Land Commission as to whether Jagir lands were to be allowed to be retained, but when his forms came up for an order by the Deputy Land Commissioner, such a decision had been taken, namely, that a Jagirdar was to place his riyati lands first, and if those were sufficient to make up his units to the ceiling of 36000 p. i. u. he could not retain the Jagir lands. That was the case with the estate of the present appellant, and upon being informed of this, on the 29th June 1959, he submitted a fresh choice. A copy of his schedule of choice has been placed on the record, as Annexure It specified land in six different villages, totalling 36,034 units. It also bare a note which was of the greatest significance for the determination of the question whether he was, in the circumstances then existing, making a choice within the meaning of paragraph 14 of the Regulation, i.e. a final choice which would determine for all time to come what his proprietary interest was to be after the excess calculated under the Regulation had been resumed by the Government, and therefore, totally lost to him. The note reads as follows:

"We own lakes in Deh Bahambbani Taluka Sakrand and Deh Fatehpur Jagir Taluka Tando Bago, which cannot be considered as lands. Nor the Government has decided regarding their produce index units. At the time when these questions are decided, we may be given right to retain lakes by way of exchange."

It is to be noted that the assertion was still being made that these lakes cannot be considered as lands", but at the same time a further ground was stated, namely, that the Government had not yet decided "regarding their produce index units" The Deputy Land Commissioner on the 30th June 1959, made an order in respect of the lands specified in Annexure F, but said nothing about the lakes. It was not until September 1959, that the decision was taken to treat lakes as land, and the measure of their valuation was fixed in terms of produce index units. The note does indeed speak of "the right to retain lakes by way of exchange", but in the view that we take, as to what is meant by a final choice under paragraph 14 of the Regulation, j the use of the expression "exchange" cannot determine the relief which the applicant may claim, under law. It is important to note that the new schedule, Annexure F, was accepted by the Deputy Land Commissioner. This schedule itself constituted the making of a fresh choice in respect of the whole of the applicant's estate, which was necessitated by the fact that under orders made since the time when he presented his original forms, the Jagir lands, which he had originally chosen to keep could not be retained. This was not a matter of mere exchange one property for another. It was a revision of the choice as a whole in respect of the entire estate, and it was allowed by the Land Commission authorities.

Here, we may pause to point out that there being a ceiling fixed, and final choice having to be made within that ceiling out of a number of categories of land falling within the Regulation, each category having its own measure of value in terms of produce index units, a person who is called upon to make a choice, which is to fix the limit of his future estate permanently, cannot be regarded as having made his final choice, or having been allowed to make his final choice, unless he is made aware not only of what he may retain and what he may not retain (e.g. as respects the Jagirdari land in this case) but also of the rates at which each category of land is to be evaluated in terms of the produce index units. He is bound to keep within a ceiling of 36,000 such units, and unless he knows the measure, in terms of units, applied to each category of the land he owns, he cannot be in a position to select the pieces he will retain, nor can he be deemed to have made any choice, so as to produce the effect of finality. The present case is not one where the omission by the Land Commission authorities in this respect came to the notice of the land owner on some date after he had exercised a final choice. Expressly by the note referred to above, he had made it clear that in the event of lakes being treated as land; and upon the fixation of their value in terms of units, he would make a fresh choice. His use of the word F "exchange" in that note does not in our view, detract from that position in any way. He was asserting the right to revise his entire choice in relation to the question of the lakes, in the same way as he had revised the choice in his original forms, on learning that Jagiri lands could not be retained. The first revision was accepted without question by the Land Commission authorities. The question here is whether there was any reason why a similar revision made later for a reason of not less importance, should not be allowed.

That revision was allowed by Mr. Ahsanuddin, and in our opinion in doing so, he was doing nothing more than carrying out the requirements of paragraph 14 of the Martial Law Regulation. That requirement is in our view imperative. The selection must be one made by the land-owner himself, subject only to the consideration that he must chooses consolidated blocks of lands. On this point, Mr. Ahsanuddin has clearly stated in his order that by retaining the lake in question, the landlord would "get his existing area consolidated." That condition being satisfied, the selection was entirely at the option of the land owner, and this is wholly reasonable, since it was a case of final expropriation by force of statute. The least that can be allowed in such a case is that the land-owner who is to have his estate substantially reduced by operation of law should be given the unilateral right of choosing all what he will retain. And it is clear that unless he knows what he can and what he cannot retain, and what valuations are set upon the different categories of land which he possesses, he cannot be in any position to exercise that right of final selection. Therefore, in our view, the order of Mr. Ahsanuddin was one made in compliance with an imperative provision in the Regulation itself.

That conclusion has a clear effect in relation to the order of I. U. Khan, reversing the decision of Mr. Ahsanuddin. The effect of Mr. I. U. Khan's order is to require the land-owner to retain property out of his estate otherwise than in accordance with his own choice. It is unnecessary to go into the grounds upon which Mr. 1. U. Khan's order proceeded, beyond saying that it makes reference to choice by way of exchange of particular properties being confined to the same village, i.e. to the facility of exchange, which is not equivalent to the major right of choice given by paragraph 14 of the Regulation. A point was raised before us by the learned Additional Advocate-General as to the difficulty which might arise on account of the Government being owner of a share in the lake. There is on the record a copy of a judgment and decree obtained in 1957 by the land owner, declaring certain orders made by the Government in respect of this lake to be illegal and void, and restraining the Government "from interfering directly or otherwise with the rights of the plaintiff over this lake called Dhand Bhand Khatian." It seems that some part of the lake is "Na-Kabuli land" as to which the Civil Court pointed out that the present appellant had a preferential claim. Any controversy as to the rights that the Government and the appellant respectively may exercise in respect of the lake would be in the nature of ordinary disputes over Civil rights, which are capable of resolution by the various methods known to law. The mere fact that such resolution may be necessary is by no means a determining factor as to the right of choice of a land-owner under paragraph 14 of the Regulation. 'The Regulation itself in paragraphs 23 and 24 makes provision for partible and impartible joint holdings, and these, if relevant, may be brought into operation. At any rate, the presence of these paragraphs in the Regulation is sufficient ground for holding that the existence of joint rights in respect of land falling within the Regulation is not a factor operative against the right of choice given by paragraph 14.

As a result of the above discussion, we are satisfied that the order of Mr. I. U. Khan is not one than can be made within the powers given by the Regulation. By paragraph 27 of that Regulation, it is provided that no order made thereunder shall be called in question in any Court including the High Court and the Supreme Court. The words are not "any order purporting to be made", but "any order made" and therefore the require ment is that any order in respect of which immunity may be claimed under paragraph 27 must be an order made in accordance with, the Regulation in its relevant provisions. Before the 7th June 1962, there were in force certain Martial Law Regulations which had effect to save actions of e.g., the 1 Land Commission authorities, which merely purported to be made under the Regulation, even though not in compliance with its relevant provisions, but these Regulations ceased to have force on the promulgation of the present Constitution, and the bar of jurisdiction under paragraph 27 was limited thereafter to orders which were in substance and form made in compliance with the Regulation. Therefore, the High Court had jurisdiction under Article 98 of the Constitution to declare that the order of Mr. I. U. Khan was made without lawful authority and was therefore of no effect.

For these reasons, we allow this appeal with costs, and reversing the decision of the High Court, we grant the appellant a declaration that the order made in review in his case, by Mr. I. U. Khan on the 31st July 1962, was made without lawful authority, and consequently is void and of no effect.

A. H. Appeal allowed.

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