Find a Lawyer

Civil Appeal No. 177 of 1979, decided on 21st April, 1984.

(On appeal from the judgment of Peshawar High Court dated 31‑7‑1978 in Writ Petition No. 238 of 1976).

---Art. 185(3)‑Land Reforms Regulation, 1972 [M. L. R. 115], paras. 4 & 2(10)‑Leave to appeal granted to Federal Land Commis sion to consider questions : (1) Whether Provincial Land Commission was not competent to re‑determine produce index value because, as asserted by petitioner, produce index units of land in question had been determined in scheme pertaining to resettlement of displaced persons and contained in relevant Booklet issued by Rehabilitation and Settlement Department, (2) whether after respondent having given up plea with regard to lack of jurisdiction of Chairman of Federal Land Commission, High Court should have re‑examined said aspect, and (3) whether there was any material before High Court to record findings of fact regarding bona fides of Chairman Federal Land Commission.

--Paras. 29, 4 & 2 (10)‑Constitution of Pakistan (1973), Art. 199 Revisional jurisdiction of Federal Land Commission‑Order of Federal Land Commission not found in constitutional jurisdiction by High Court to be bad on ground of mala fides, personal or legal‑Mere fact that Federal Land Commission set aside order of Provincial Land Commission passed with jurisdiction would not be enough, by itself, to declare order of Federal Land Commission setting aside order of Provincial Land Commission as illegal, was other than bona fide Ground of male fide or lack of bona fide, therefore, could not be made basis for setting aside order of Federal Land Commission in circumstances.

---Paras. 2(10) & 4 Predetermination of produce index units by Pro vincial Land Commission‑Produce index units for purposes of Land Reforms are to be determined with reference to measure of produce index units used for purpose of scheme relating to resettlement of displaced persons lands under Displaced Persons (Compensation and Rehabilitation) (Lands) Laws‑Provincial Land Commission was empowered to determine units in exceptional cases where a certain assessment circle or area was omitted from Table of units prepared for slid Scheme.

Paras. 2(10) & 4‑Redetermination of units by Provincial Land Commission‑Units not necessarily be mentioned in main body of Table of units‑Concerned measure of comparative productivity refined in para. 2(10). if available in any form. Notification. Order. Direction Table, Clarification etc. Same shall have to be adopted for purposes of Land Reforms, provided whatever the material, its authenticity and source power were not in doubt. Booklet relied by Federal Land Commission for determination of value of units being authentic and issued by a competent authority‑Mere fact that relevant guidance for determination of units for classes of land in question was found in Introductory part of said Booklet, would not make any difference in circumstances and could be relied, there being nothing vague or uncertain therein‑Introduction of Booklet was a part of standard or measures for purposes of determining comparative productivity of land‑Provincial Land Commission, therefore, could not re‑determine units simply because relevant material was found in Introductory part of Booklet‑It is "the measure (1) in terms of which comparative productivity is computed and expressed and not that computation and its expression should be found in Table itself‑Word "computed" wide enough to include therein guidelines contained in introductory part of Booklet for discovering measure regarding comparative pro ductivity‑Case being fully covered by first part of para. 2(10), Provincial Land Commission fell into error in assuming in circum stances, that commission had power to re‑determine units under second part of para. 2(10)‑Second part of para. 2(10 would not come into play until and unless first part of para. 2(10) does not cover a case‑Decision of Federal Land Commission was, therefore, unexcep tionable.‑[Words and phrases].

‑‑ Para. 29 & 2(10)‑Decision on question of fact regarding measure of comparative productivity by Provincial Land Commission‑Federal Land Commission, in its revisional jurisdiction, whether could disturb such decision on question of fact and could be opened in Supreme Court‑Held, determination of facts in Land Reforms cases was not subject to normal limitations applicable to other types of cases.

Federal Land Commission etc. v. Mst. Zarin Qaisha etc. Civil Appeal No. 267 of 1976 ref.

‑‑ Paras. 29 & 2 (10)‑Land owners filing requisite forms under Land Reforms Regulation, 1959 [M. L. R. 64]‑Federal Land Commission passing revisional order under M. L. R. 115‑Apprebension that declarants on account of orders of Federal Land Commission would be deprived of compensation vis‑a‑vis their rights under M. L. R. 64 because revisional orders were passed under M. L. R. 115‑‑Compensa tion under M. L. R. 64 will be available to such declarants and that for said purpose M. L. R. 64 would be deemed not to have been repealed‑Anything to the contrary expressed in order of Federal Land Commission, therefore, would not operate to the prejudice of declarants in this behalf.

M. Hanif Bhatti, Advocate Supreme Court, Ch. Akhtar Ali Advocate‑on‑Record and Ch. Irshad Ahmad, Legal Adviser, F. L. C. for Appellant.

M. H. Lughmani, Advocate Supreme Court and Imtiaz Muhammad Khan, Advocate‑on‑Record for Respondents.

Date of hearing : 21st April, 1983.

This appeal through special leave of this Court is directed against the judgment of the Peshawar High Court dated 31st July, 1978; whereby a Constitutional petition arising out of a Land Reforms Case filed by the respondent side was allowed and the order dated 21‑9‑1976 of the Federal Land Commission was set aside.

The respondents are land‑owners in Kaghan Valley in the North‑West Frontier Province. They submitted the requisite forms under the Land Reforms Regulation of 1959. The Deputy Land Commissioner assessed 11 P. I. Units per acre for Dhaka Chiragah (Banjar Qadeem) while 5 per acre for Ghairmumkin land. The respondents were required to surrender the area in excess of the permissible limit worked out in accordance with the aforementioned P. I. Units value for purpose of disposal under the Land Reforms Regulation. The land‑owners moved the then West Pakistan Land Commission for re‑determination of the P. I. Units value of the two above‑mentioned classes of land and succeeded in getting them determined at 2 P. I. Units per acre for Banjar Qadeem and 1 P. I. Unit per acre for Ghair mumkin. In 1972 the Second Land Reforms Regulation No. 115 was pro mulgated. In March, 1976 the Chairman Federal Land Commission noticed the reduction of P. I. Units in this case. He was prima facie of the view that the Provincial Land Commission could not have reduced the P.I. Units value as it stood determined by a statutory provision. He accordingly in exercise of his suo motu revisional power, after issuing notice to the land, owners, set aside the order of the Provincial Land Commission and while restoring the original P. I. Value of the two classes of land in question directed further proceedings accordingly. As then estimated more than 1,20,000 acres, equal to more than 13,14,000 P. I. Units became available for disposal in accordance with the Land Reforms Regulations.

The land‑owners (respondents) aggrieved by the order of the Chairman, Federal Land Commission filed a Constitutional Petition before the High Court which having been allowed the order dated 21st September, 1976 was set aside. Special leave to appeal having already been granted in some cases to examine various aspects of the jurisdiction of the Federal Land Commission to revise orders passed by the Provincial Land Reforms Authorities, leave to appeal was also granted in this case to examine various questions raised by the appellant (Federal Land Commission) in the petition for special leave to appeal namely: whether the Provincial Land Commission was not competent to re‑determine the P. I. Value because as asserted from the appellant side the P. I. Us. of land in question had been determined in the Scheme pertaining to re‑settlement of displaced persons and contained in the relevant Booklet issued by the Rehabilitation and Settlement Department; whether after the learned counsel for the respondents had given up the plea with regard to lack of jurisdiction of the Chairman, Federal Land Commission, the High Court should have re‑examined this aspect of the case; and, whether there was any material before the High Court to record findings of fact regarding the bona fides of the Chairman of the Federal Land Commission.

Learned counsel for the appellant has contended that for purpose of calculating the P. I. Value under the Land Reforms Regulation, 1972 the definition in para. 2(10) of "Produce Index Unit" would have to be followed. In the said provision this phrase had been defined as follows. (It is similar in 1959 Regulation)

"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 the re‑settlement 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 determined, such measure as may be determined by the Commis sion for the Province within which such assessment circle or area is situated ; "

Learned counsel for the appellant further contended that the Booklet published by the Government for the purpose of discovering the produce index value under the Land Settlement Laws contained "the measure in terms productivity" of Me land in question in the assessment circle concerned has been computed and expressed which as shown by him to the Kaghan Valley is : 11 P. I. Us. for Banjar Qadeem and 5 P. I. Us. for Ghairmumkin lands. That being so he further argued, if the case clearly fell within the first part of the definition of produce Index Unit as contained in paragraph 2(10) of Land Reforms Regulation, 1972 then by force of the language in the definition, it would not fall in the second part which conferred jurisdiction on the Provincial Land Commission to determine the P. I. value.

Learned counsel for the respondents invited our attention to the entry in the Land Settlement Booklet at page 13 thereof and pointed out that regarding Kaghan Assessment Circle all the six classes of land entered therein are different from the two classes of land involved in the present case. Therefore, according to him the definition in paragraph 2(10) of the Regulation, in so far as it requires that the P. I. value should be "computed and expressed" in accordance with the entries in the Scheme (Booklet), has not been satisfied. Regarding the procedure to be adopted for calculating the P. I. value of Banjar Qadeem and Ghairmumkin land given in the introductory part of the Booklet, learned counsel explained and contended that the same could not be treated as forming part of the Scheme/Booklet.

This case has been delinked from the others involving various questions relating to the jurisdiction of the Federal Land Commission because the respondents herein who were the successful petitioners before the High Court, as mentioned in para. 6 of the impugned judgment, did not then press the objection relating to the jurisdiction. On the contrary they accepted that the Chairman of the Federal Land Commission was competent to exercise the revisional jurisdiction under para. 29 of the Land Reforms Regulation No. 115. When the writ petitioners again after once given up the point, tried to re‑assert it, it was noted in para. 17 of the impugned judgment that the learned counsel for the respondents in the High Court (the appellant herein) argued that the writ petitioners "had already contested their cases before the Chairman Federal Land Commission which means that the objec tions about the jurisdiction if any had already been waived but as indicated above, the learned counsel for the writ petitioners is no longer serious to press that objection". It was on account of this attitude of the learned counsel for the writ petitioners that although several legal points regarding jurisdiction were noted, the writ petition was allowed by the learned Judges of the High Court solely on the ground that "the Provincial Land Commission had jurisdiction to re‑classify this land for the relevant purposes. Therefore the impugned order of the Federal Land Commission could not be termed as bona fide. To that extent this Writ Petition would therefore succeed".

With respect, it is pointed out that throughout the judgment there is no discussion regarding the order of the Federal Land Commission being bad on grounds of mala fides, personal or legal. There is no other reference whatsoever on this subject. The mere fact that the Federal Land Commission set aside the order of Provincial Land Commission which as found by the High Court was passed with jurisdiction would not be enough, by itself, to declare that the order of the Federal Land Commission setting aside the orders of the Provincial Land Commission as illegal, was other than bona fide. In the peculiar circumstances of this case therefore the ground of mala fide or lack of bona fides could not be made the basis for setting aside the order of the Federal Land Commission. This appeal would have succeeded on this ground alone but the question whether the Provincial Land Commission had the jurisdiction to re‑determine the Produce Index Units for the land in question being germane to the merits of the case, we consider it necessary to resolve the same.

It has already been noted that the P. I. Units for the purposes of Land Reforms according to the relevant law (para. 2(10) of the Regulation) are to be determined with reference to the measure of P. I. Units used for the purpose of Scheme relating to the re‑settlement of displaced persons lands under the Displaced Persons (Compensation and Rehabilitation) (Lands) Laws. It is only when a certain assessment circle or area is omitted from the table of units prepared for the said Schemes that the Provincial Land Commission was empowered to determine the units in such exceptional cases. The question therefore is whether the units in this case were determinable by the table of units for the Rehabilitation and Settlement Scheme.

Undoubtedly in so far as the main text of the Table is concerned, as against Kaghan Assessment Circle, the classes of land in question are not specified. In other words, the six specified classes therein do not include the two involved in this case. But that would not end the matter. It is not the main body of the Table which has been referred in para. 2(10) but the words used are "the measure in terms of which the comparative productivity ..in a particular assessment circle or area is computed and expressed for the purposes of the Scheme". It is not the requirement of the law that the units must necessarily be mentioned in the main body of the Table of units. On the contrary if the concerned measure of comparative productivity referred in para. 2(10) is available in any form‑Notification, Order, Direction, Table, Clarification etc. the same shall have to be adopted for the purposes of the Land Reforms, provided whatever the material, its authenticity and source power are not in doubt. It was not the case of the respondents before the High Court nor it has even been asserted in this Court that the Booklet relied upon by the Federal Land Commission titled "Produce Indices of the Districts of Peshawar Division and the Districts of Dera Ismail Khan, Bannu and Kohat" was not authentic or that it was not issued by a competent authority. The mere fact that the relevant guidance for determination of the units for the two classes of land in question is found in the Introductory part of the Booklet, will not for the aforestated reasons make any difference. And additionally it may be remarked that para. 2 of the so‑called Introduction in fact contains substantive directions for working out the Produce Index Units in cases like the present one. There is nothing left vague or uncertain therein. That very subject could have been included in the form of provisos to the entire table or otherwise in the form of the purview of the Table. Its description by the word "Introductory", on account of the contents thereof is slightly misleading. In reality it is a part of the standard or measure for purpose of determining comparative productivity of land. Thus the argument of the learned counsel for the respondents that the Provincial Land Commission could re‑determine the units in this case simply because the relevant material was found it, the introductory part of the Booklet has no force. The second argument of the learned counsel for the respondents in this behalf is that unless the P. I. Units are "computed and expressed" in the Booklet its‑If, any fresh computation through a formula given in the so‑called introductory part would not be enough to treat this case as covered by the first part of the para. 2(10) of the Regulation. With respect here the learned counsel has failed to notice that it is "the measure" in terms of which the comparative productivity is comput ed and expressed and not that the computation and its expression should be found in the Table itself. The word "computed" is wide enough to include therein the guidelines contained in the so‑called Introductory part for discover ing the measure regarding comparative productivity. This argument also therefore has no force.

Looked at from whatever angle this case was fully covered by the first part; pare. 2(10) which contained the relevant definition for the P. I. Units. There're the Provincial Land Commission fell into error in assuming that, in this case they had the power to re‑determine the Units under the second part thereof which it has not been disputed before us would not come into play until and unless the first part does not cover a case. The decision of the Federal Land Commission therefore in this behalf was unexceptionable.

An attempt was made to canvass, from the respondents side, that the Provincial Land Commission having decided a question of fact regarding the measure of comparative productivity the Federal Land Commission in its revisional jurisdiction should not have disturbed it and in any case the High Court having determined this question, it should not be opened in this Court. This very argument could be pressed from the appellant side in the High Court but as held by this Court in Federal Land Commission etc. v. Mst. Zarin Qaisha etc. (Civil Appeal No. 267 of 1976 decided on 18‑5‑1983) that the determination of facts in Land Reforms cases is not subject to the normal limitations applicable to other type of cases.

Before closing this judgment it needs to be mentioned that an apprehen sion, was expressed, from the respondent side during the hearing of this appeal to the effect that the declarants on account of the orders of the Federal Land Commission would be deprived of compensation vis‑a‑vis their rights under M. L. R. 64 because the Federal Land Commission passed the revisional order under M. L. R. 115. The learned counsel for the appellant explained that the compensation under M. L. R. 64 will be available to the declarants (respondents herein) and that for the said purpose M L. R. 64 would be deemed not to have been repealed. That being so anything to the contrary expressed in the order of the Federal Land Commission would not operate to the prejudice of the declarants in this behalf.

With the foregoing observations and in the light of the earlier discussion on the questions involved in this appeal, the same is allowed, the judgment of the High Curt is set aside. There shall be no order as to costs.

M. Z. M. Appeal allowed.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.