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Civil Petitions Nos. 67 and 82 of 1978, decided on 8th May, 1985.

(On appeal from the judgment, dated 5‑12‑1977 of the Lahore High Court in Writ Petition No. 993 of 1969).

‑‑‑Arts. 185(3) & 199‑‑West Pakistan Land Reforms Regulation, 1959 [M.L.R. 64], para. 9(d)‑‑Declaration of holdings‑‑Declarant allowed to file fresh declaration Form and to retain State land for livestock on existing terms and conditions‑‑Ten per cent reduction claimed in calculation of produce index units of area being irrigated by lift arrangement‑‑Claim based on plea that same concession had been given to landowners of adjacent circle‑‑No provision of law, rule, direction, scheme or policy cited in support of plea claim for rebate‑‑Such plea could not be given effect to in Constitutional jurisdiction‑‑Judgment of High Court being just, fair and reasonable considering all circumstances of case, leave to appeal refused.

M.Z. Khalil, Advocate‑on‑Record for Petitioners (in Civil Appeal No. 67 of 1978).

Sh. Nasim Hassan, Advocate Supreme Court and S. Wand Hussain, Advocate‑on‑Record for Petitioners (in Civil,Petition No. 82 of 1978).

Sh. Nasim Hassan, Advocate Supreme Court for Respondent No. 1 (in Civil Petition No. 67 of 1978).

S.M. Zubair, Addl. A.‑General and Sh. Ijaz Ali, Advocate‑on -Record for Respondents Nos. 2 and 4.

M.Z. Khalil, Advocate‑on‑Record for Respondents Nos. 4, 5, 7 and 8 (in Civil Petition No. 82 of 1978) .

Nemo for Respondent No. 6.

Date of hearing: 4th May, 1985.

‑This order will dispose of Civil Petition No. 67 of 1978 and Civil Petition No. 82 of 1978, as both of these petitions are directed against a common judgment of the Lahore High Court, dated 5‑12‑1977.

The relevant facts are that Syed Muhammad Abbas Shah (petitioner in C.P. No. 82 of 1978) Sajjadanashin of Dargah Hazrat Syed Daud Bandgi Kirmani, resident of Shergarh, Tehsil Depalpur, District Sahiwal is the owner of considerable landed property. On the promulgation of Martial Law Regulation No. 64 of 1959 he was constrained to file, as required by the said Regulation Form L.C.‑I (regarding the land owned/possessed by him) and Form L.C.‑II (regarding the land desired to be retained by him for self and his heirs under paras. 8 and 9 of the said Regulation) and also the area proposed to be gifted to his heirs under para. 9(f), ibid.

It appears that the entries in his declaration forms did not tally with the entries of revenue records because the declarant (Syed Muhammad Abbas Shah) had entered into a large number of transactions of exchange, partitions and alienations without caring to get these transactions duly recorded in the revenue papers.

The Deputy Land Commissioner, Montgomery (now Sahiwal) on the basis of the existing entries in the revenue records passed an order, dated 15‑6‑1959 wherein the declarant was allowed to retain 1,248 Acres 1 Kanal 15 Marlas (equivalent to 30,885 produce index units) of his choice already given in Form L.C.‑II and allowed to give further choice in respect of 5,117 produce index units to complete his entitlement of 36,000 produce index units under para. 9(a) of Martial Law Regulation No. 64. He was also allowed to gift 398 Acres 4 Kanals 9 Marlas in favour of his mother Mst. Ghulam Sakina (since dead) and his first wife Mst. Nisar Fatima under para. 9(f) of Martial Law Regulation No. 64. The Produce Index Units of this area worked out to 15,747 and as the declarant was entitled to gift upto 18,000 produce index units he was allowed to make a further gift of 2,253 produce index units to his aforesaid heirs. The remaining excess area of 16,623 produce index units was resumed in favour of Government, subject to its decision on his application for retention of land under livestock farm under para. 9(d) of Martial Law Regulation No. 64.

Subsequently, the Commissioner, Multan ‑Division, in his order, dated 2‑10‑1059 pertaining to exchange of State land by the declarant directed that:

"if the possession of the area exchanged has passed since before the 8th October, 1958 the Deputy Land Commissioner will please give retrospective effect to the decision announced and S. Muhammad Abbas Shah may be allowed to benefit from or to amend his L.C.‑II form."

In March, 1960, the Government also allowed the declarant to retain 224 Acres of State land for livestock farm under para. 9(d) of Martial Law Regulation No. 64, on the existing terms and conditions.

The Deputy Land Commissioner thereupon made a reference to the higher authorities that if the exchange, etc. referred to above, were given effect in the revenue record the position of the holding of the declarant would be changed and there would be no alternative but to allow the declarant to amend or file a fresh Form L.C.‑II. The Chief Land Commissioner, West Pakistan, thereupon allowed the declarant to amend or to file a fresh Form L.C.‑II on the condition that the gift made by him in favour of his mother shall not be withdrawn (vide memo, dated 6‑3‑1962 of the Secretary Land Commission). 13y a subsequent memo, dated 7‑5‑1962 issued by the same Secretary it was intimated that while permitting the declarant to amend or file a fresh Form L. C.II, the gift previously made by him in favour of his wife should also not allowed to be withdrawn. Accordingly, the Deputy Land Commissioner, on 25‑1‑1963, reviewed the earlier order of the Deputy Land Commissioner, dated 15‑6‑1959. The total holding of the declarant on his fresh Form L.C.‑I, after excluding the area inherited by him from his wife, Mst. Nisar Fatima, who died in May, 1960, was worked out afresh. Herein, he was not only allowed to retain 36,000 produce index units but was also allowed to retain 158 Acres 6 Kanals 15 Marlas, equivalent to 9,709 produce index units of State land for livestock farm under para. 9(d) of Martial Law Regulation No. 64. However, he was required to adhere to the gifts of land previously made by him in favour of his mother Mst. Ghulam Sakina and deceased wife Mst. Nisar Fatima, as directed by the Chief Land Commissioner. The dispute in both these petitions relates principally to the question of these gifts.

Syed Muhammad Abbas, declarant (petitioner in C.P. No. 82 of 1978) desires to withdraw the gifts previously made in favour of his mother and deceased wife while the beneficiaries of the said gifts (the petitioners in C.P No. 67 of 1978) do not want any alteration in this regard.

Syed Muhammad Abbas Shah feeling aggrieved by the portion of the order of the Deputy Land Commissioner, dated 25‑1‑1963 that he must adhere to the gifts made to his mother and first wife filed an appeal ‑before the Land Commissioner, Multan seeking modification of the order of the Deputy Land Commissioner, dated 25‑1‑1963 principally to the effect that‑‑

(a) he should be allowed to exercise a fresh choice in respect of the area he had 'in his previous declaration forms proposed to be "conditionally" gifted in favour of his mother and deceased wife; and

(b) 10 per cent reduction should be allowed in the calculation of produce index units of his lands valuing 15,767 produce index units situated in Mauza Sher Garh and Chak No. 211D, Tehsil Depalpur which were being irrigated by lift arrangement.

The appeal of Syed Muhammad Abbas was rejected by the Land Commissioner, Multan Division, vide order, dated 11‑6‑1963. His revision before the Chief Land Commissioner was dismissed on 30‑5‑1969. He then filed Writ Petition No. 993 of 1969 in the Lahore High Court against the orders of the Land Commission authorities. The said writ petition succeeded partly in that though the request for 10% reduction; in the calculation of produce index units of the area which was being irrigated by lift arrangement was not allowed, the petitioner (Syed Muhammad Abbas) was allowed to exercise fresh choice. However, this permission was made subject to certain conditions, which were stated as follows:

"The upshot of the above discussion is that the orders impugned in this writ petition on the subject in hand are declared to be without lawful authority only in so far as they placed or purported to place an embargo from the side of the Land Reforms authorities in the matter of the impugned gifts, but it is clarified that whether the aforesaid gifts were made or were complete and whether they were otherwise revocable or not, and if so, in what manner, through which forums, are all matters which arise between parties (or their successors‑in‑interest) and will have to be legally resolved by or between them in accordance with law for which purpose they will be at liberty to resort to such proceedings and remedies, etc. as may be available to them under the law of the land and that nothing written herein should be considered as recognising, validating or invalidating those gifts, which subject, as above analysed, is left open. Order accordingly. There shall be no order as to costs."

Syed Muhammad Abbas Shah feeling dissatisfied with the decision of the High Court has filed Civil Petition No. 82 of 1978 in this Court, while the donees Syed Ali Abbas Shah, etc. too, being dissatisfied, have filed Civil Petition No. 67 of 1978. Both these matters have now been heard by us together.

Learned counsel for the petitioners in both the petitions have been heard.

The donees contend that the gifts in their favour had become final and, therefore, could not be put into jeopardy; while Syed Muhammad Abbas Shaft contends that in view of the fact that fresh choice had to be made he should have been completely free to retain whatever area he thought fit and likewise free to surrender any area which he did not wish to retain including the area comprised in the earlier gifts. He also contends that he is entitled to rebate of 10% on recalculation of the land which was under Lift irrigation.

The learned Judges of the High Court while rejecting last mentioned claim held hat it was not shown to them as to under what provision of law, rule direction, scheme or policy the aforesaid rebate was being claimed and the plea that it should be allowed as the same concession had been given to the land owners of an adjacent circle was not a plea which could be given effect in Constitutional jurisdiction.

We entirely agree with this view of the High Court and find no force in the contention of the declarant (petitioner in C.P. No. 82 of 1978) that he is entitled to any rebate by analogy.

As regards the other question with respect to which both the parties feel aggrieved, petitioner in C.P. No. 82 of 1978 contends that although his plea that while giving fresh choice he was not bound by the gifts made earlier on the ground that the stage of making gifts could arise after the declrants holding was first determined where after he could decide as to what area he wanted to retain for himself and the stage for availing of the concession to gift away permissible area to certain qualified heirs would come later was accepted but feels aggrieved by the classification made in the judgment to the effect "whether these gifts, if earlier made, could be changed, revoked or withdrawn was a matter between the donor and the donees concerned and not between the Land Reforms authorities whose sole job was first to calculate total holding of a declarant, then the basic area permissible to be retained by him personally or in the form of permissible items and lastly to allow gifts if otherwise authorised."

While the petitioners in C.P. No. 67 of 1978 feel that these observations are not sufficient and it should have been categorically held that the declarant cannot include the area comprised in the gifts in the fresh L.C. Forms he has been permitted to submit.

We feel that the judgment of the High court is just, fair and reasonable considering all the circumstances of this case. Nor it is against any provision of law, rule or the scheme and, therefore, not liable to be interfered with. Both these petitions, therefore, are liable to fail.

We may mention that Mst. Ghulam Sakina (Petitioner No. 3 in C.P. No. 67 of 1978) died during the pendency of the petition. She was also respondent No. 6 in C.P. No. 82 of 1978 filed by Syed Muhammad Abbas Shah. Whereas the latter, as petitioner in C.P. No. 82 of 1978 impleaded her legal representative in his petition after her death; the legal heirs of Mst. Ghulam Sakina were not brought on the record in C.P. No. 67 of 1978. We gave time to the Advocate‑on‑Record of the petitioner in C.P. No. 67 of 1978 to do the needful and he, in fact, undertook to file a power of attorney on behalf of the legal representatives if some time was granted to him. The case was adjourned for this purpose but he submitted thereafter that while one of the legal heirs, namely, Syed Muhammad Abbas Shah was already respondent No. 1 in his petition but the other legal heirs, namely, the two daughters of the deceased (Mst. Tahira and Mst. Zahira) were not prepared to give him any power of attorney. On the other hand, Sh. Nasim Hassan, learned counsel for Syed Muhammad Abbas Shah submitted that Mst. Ghulam Sakina had in her own life time agreed to abide by the wish of Syed Muhammad Abbas Shah and was not opposing his claim that the gift in her favour may be excluded and should no restrict the freedom of his choice and had even submitted a petition, conceding his claim. This petition is on the record in C.P. No. 82 of 1978. He further submitted that her daughters were merely abiding by her mother's wishes not to agitate the claim.

Be that as it may, since Mst. Ghulam Sakina was a petitioner (in C . P. No, 67 of 1978) it was the duty of her legal representatives to get themselves brought on record, if they were interested to pursue their petition. Since they have declined to do so; it 'is not necessary to consider their claim with regard to the validity of the gift made in favour of their mother any further.

The upshot is that both these petitions fail and are, accordingly, dismissed hereby.

M.I. Leave refused.

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