P L D 2016 Balochistan 87
Before Muhammad Ejaz Swati and Mrs. Syeda Tahira Safdar, JJ
QADIR BAKHSH ----Petitioner
Versus
Mst. HAZAAN and 50 others ----Respondents
C.P. No.694 of 2009, decided on 7th March, 2016.
Land Reforms Regulations, 1959 (MLR 64 of 1959) ---
----Para. 21---Resumption of "jagir" in favour of Provincial Government ---Scope ---Supreme
Court while affirming the findings of High Court had held that property in dispute was "jagir"
which had abolished and reverted to Government fr ee from any encumbrance or charges with
effect from 3rd October, 1959 and remanded the case to Deputy Land Commissioner or
concerned authority to initiate proceedings for determining the rights/entitlement if any ---Deputy
Land Commissioner had directed the jagirdars to submit declaration for initiation of proceedings
for determination of right/entitlement if any ---Impugned orders had been passed keeping in view
Para 21 of MLR 64 of 1959---No illegality had been pointed out in the impugned order ---
Constitution/al petition was dismissed in circumstances.
Kamaran Arshad for Petitioners.
H. Shakil Ahmed for Respondents.
Zahoor Ahmed Baloch, Asstt. A.G. for the State.
Date of hearing: 11th November, 2015.
JUDGMENT
MUHAMMAD EJAZ SWATI, J. ---The respondent Nos. 1 to 48 were recorded
Jagirdars, since 1956- 57 of the agricultural land, situated in following villages of Kachhi: -
Khatan 2654- 0-12 Acres Silaba.
Rustam 2566- 1-33 Acres Nehri
Kulang 1551 -0-0 Acres Nehri
Pair 2850- 2-12 Acres Sil aba
Peer Ahmed Shah 1415- 2-01 Acres Silaba
Chaitani 2911- 1-27 Acres Silaba
Baghai 1436 -1-23 Acres Nehri.
(hereinafter referred to as "the property in dispute")
2. Besides aforesaid lands they have got other agriculture lands situated in vario us District
of Balochistan. On 3rd October, 1959, all Jagir hold right in the settled area of Kalat Division
including Tehsil Dhadar stand abolished under Para 21 of MARTIAL LAW REGULATION
(MLR) 64 of 1959, and any right, interest, state granted, assigned, released, created affirm by
such "jagir" had reverted to government free from any encumbrance or charges. The lands of
respondents Nos.1 to 48 were consequent to MLR 64 of 1959, dated 7th June 1959, the property
in dispute were resumed in favour of the Pr ovincial Government free from all encumbrances.
The petitioners were recorded as occupants of the property in dispute and their status were
altered as full owners and such mutation entries were also incorporated in the revenue record,
vide order of the Col lector, Kachhi, dated 30th October, 1983. The respondents Nos.1 to 48
challenged the aforesaid entries undertaken by the Deputy Land Commissioner/Collector Kachhi
on the ground that they were not "Jagirdars", but they had got the property in dispute throug h
different source and were full owners of the same. They also averred that their case was not
covered by the provision of MLR 64 of 1959, therefore, the property in dispute was not liable to
be resumed under MLR 64 of 1959. The respondents Nos.1 to 48 approached the Member Board
of Revenue, by filing revision petition under MLR 115 read with Rule 12 of the Balochistan
Land Reform Rules, 1972, but the same was dismissed on 16th April, 1995, against which,
Constitutional Petition No.200/1995 was filed, however, the said petition was dismissed by this
Court on 23rd December, 1996, which judgment was assailed in Civil Appeal No.1030 of 1999,
by the respondents Nos.1 to 48 and the same was decided by the Hon'ble Supreme Court of
Pakistan, vide judgment dated 3rd April, 2007 and remanded the case to Deputy Land
Commissioner/Collector, Kachhi.
3. After remand of the case, the private respondents submitted an application dated 31st
May, 2008 before the Deputy Land Commissioner Kachhi, for implementation of the judgment
of the Hon'ble Supreme Court. The learned Deputy Land Commissioner, Kachhi on 28th June,
2008 passed the following order:
"Forgoing in view, the mutation entries in the name of private respondents one ordered to
be cancelled as held illegal by the Honorable Supreme Court of Pakistan and the record
of all above discussed Mouza Jat shall be treated as it was prior to 30.10.1983 In order to
avoid any delay, for implementation of the Orders of the Honorable Supreme Court the
appellants/ Jagirdars are di rected to submit Declaration Form mentioning their land as
jagir together with another area as it stood on the day of promulgation of MLR -64 of
1959 and choice for retaining 500 Acres irrigated land or 36000 PIUs of un -irrigated land
as the case may be wit hin a period of 30 days. The Revenue Staff of Sub- Tehsil Khattan
is also directed to extend own/possesses in any other capacity. After making choice the
rest land shall revert to the Government and will be disposed off according to procedure
prescribed in the regulation."
4. The petitioners assailed the aforesaid order before the Land Commissioner, Kachhi, by
way of filing appeal, who vide order dated 17th November, 2008 dismissed the same. The
aforesaid both orders were further challenged by the petitioners by way of filing revision petition
before the Senior Member Board of Revenue, as Chief Land Commissioner, and the said revision
was dismissed on 24th August, 2009. The instant petition has been filed against the aforesaid
orders (hereinafter ca lled impugned orders).
5. The learned counsel for the petitioners contended that the impugned orders are contrary
to dictum/judgment of the Supreme Court of Pakistan, dated 3rd April, 2007 and this Court dated
23rd December, 1996; that property in disput e was duly recorded in the name of petitioners in
the revenue record and under the MLR 64, after considering all legal aspects of the matter, and
the same was not challenged by the private respondents any further, which was further upheld by
this Court, vi de order dated 23rd December, 1996; that judgment of this Court dated 23rd
December, 1996 though was assailed before the Hon'ble Supreme Court and the apex Court vide
order dated 3rd April, 2007 had neither set aside the judgment of this Court, nor cancell ed the
mutation entries from the names of the petitioners therefore, the Deputy Land Commissioner
Kachhi, Land Commissioner, Bolan and learned Senior Member Board of Revenue, had got no
authority to cancel the mutation entries, therefore, same be declared without lawful authority
having no legal effect; that the private respondents were allowed choice by the Hon'ble Supreme
Court under Paragraph 21(2) of the MLR 64, as to whether any such option was availed by the
private respondents or not, but the Deputy Commissioner, Kachhi without first making any
inquiry into the facts related to choice, canceled the revenue entries made in the name of
petitioners in the revenue record and deprived the petitioner from their lawful rights; that the
Land Commissioner, as well as, Senior Member Board of Revenue have also failed to consider
this admitted factual and legal aspect of the matter, therefore, the impugned orders are not
sustainable under the law; that the impugned orders have been passed without having any
substa nce; that during first round of litigation the private respondents had already availed choice
and in the impugned orders the relevant documents regarding aforesaid context had been ignored
and there was no occasion to again return the lands, as provided by Chapter 21(2) of the MLR,
64 nor they were entitled for the same; that the official respondents have exercised power not
vested to them and that the impugned orders are also contrary to the judgment of Hon'ble
Supreme Court dated 3rd April, 2007.
6. The learned counsel for the private respondents contended that after passing of judgment
by Hon'ble Supreme Court dated 3rd April, 2007, the matter related to choice of the respondents,
as provided under Chapter 21(2) of MLR, 64 was referred to the official r espondents, and the
Deputy Land Commissioner, Kachhi, vide order dated 28th June, 2008, directed the revenue staff
of sub- Tehsil Kattan, for allowing the private respondents to make their choice in respect of
property up to 500 acres, and rest land shall r evert to the Government and disposed of according
to procedure prescribed in the Regulation; that after passing order by Deputy Land
Commissioner, Kachhi, the matter has not been finalized, therefore, the instant petition is also
not maintainable, as the m atter related to implementation of order pursuant to chapter 21(2) of
the MLR 64 is yet to be decided: that there are no illegalities or jurisdictional defect in the
impugned orders; that the learned Land Commissioner, Kachhi, while passing the order dated
28th June, 2008, made direction that private respondents be allowed opportunity to file
declaration forms within 30 days and to give their choice to retain 500 acres.
7. The learned Assistant Advocate General appearing on behalf of official respondents
contended that the impugned order passed by the Deputy Land Commissioner and upheld by the
Senior Member of FBR are in compliance of the judgment of the Hon'ble Supreme Court of
Pakistan in Civil Appeal No.1030/1999.
8. We have heard the learned counsel for the parties and perused the record of the case. The
private respondents or their predecessor -in-interest at the relevant time were recorded in the
record of rights, "as Jagirdar". The Deputy Land Commissioner/Collector, Kachhi vide order
dated 30th Oct ober, 1983 resumed the property in dispute in favour of the Provincial
Government free from all encumbrance under Para No. 21 of MLR 64 of 1959, at that time the
petitioners were recorded as occupants of the property in dispute and consequently their status
from occupant of land was altered to full owner and the mutation entries were also incorporated
in the revenue record. The private respondents challenged the aforesaid order of the Deputy Land
Commissioner before this Court in Constitutional Petition No. 200 of 1995 on the various
grounds including that the property in dispute was not "Jagir" but they owned the same on the
basis of instrument of sale, blood compensation and exchange etc. This Court vide judgment
dated 23rd December, 1996 held that property in dispute was "Jagir" and thus repelled the
contention of the private respondents. The Hon'ble Supreme Court of Pakistan in respect of
above findings of this court observed and held as under:
"We have given our anxious consideration to the entire facts and circumstances of the
case and have carefully examined the reason given by Hon'ble Judges of the High Court
in recording findings on merits against the appellants (reproduced above) and to the
arguments of learned counsel for the parties advanced befor e us. It is an admitted position
that appellants or their predecessors -in-interest, at the relevant time were recorded in the
Record of Rights, as Jagirdars and the properties in dispute were not subject to
assessment of Land Revenue, hence the Hon'ble Judges of the High Court after having
carefully examined the relevant laws correctly held that the properties in dispute were
Jagirs' and under Para 21(1) of MLR, 64 of 1959, the same stood automatically abolished
and reverted to the Government free from any encumbrance or charge, w.e.f. 3rd
October, 1959."
9. From the above, it is quite obvious that on the question as to whether the property in
dispute was "Jagir" or not? The Hon'ble Supreme Court of Pakistan while affirming the findings
made by this Court in C.P. No. 200 of 1995 held that the Hon'ble Judges of the High Court after
having carefully examining the relevant laws, correctly, held that property in dispute was 'Jagir'
and under Para 21(1) of MLR 64 of 1959, the same is automatically abolished and reverted to
Government free from any encumbrance or charges with effect from 3rd October, 1959,
therefore, to that extent the Deputy Land Commissioner had no jurisdiction to pass any order.
However, the Hon'ble Supreme Court while considering the sub- Para (2) of 21 of MLR 64 of
1959 observed that the revenue authority was duty bound to undertake the exercise under sub-
Para (2) of 21 of MLR of 64 of 1959 and remanded the case as follows:
"In view of above mentioned, this appeal is partly allowed and it is held that the Land
Reforms Authorities acted illegally in not determining the entitlement of the appellants or
their predecessors -in-interest under sub- Para 2 of para 21 of MLR 64 of 1959 prior to
transferring the land in dispute in favour of private respondents or their predecessors -in-
interest, therefore, the Deputy Land Commissioner of the concerned District or the
concerned lawful authority shall immediately initiate proceedings for determining the
rights/entitlement, if any, of the appellant or their p redecessor -in-interest under sub- para
2 of the 21 of MLR 64 of 1959 and take steps for giving them their entitlement in
accordance with above law, rules and regulations etc. and since it is a very old matter,
therefore, it shall be finalized within six mon ths."
10. From the above, it is clear that the Hon'ble Supreme Court of Pakistan remanded the case
to the Deputy Land Commissioner or the concerned authority to initiate the proceedings for
determining the rights/entitlement, if any, of the private respo ndents or their predecessors -in-
interest under sub- para (2) of Para 21 of MLR 64 of 1959 and take steps for giving them their
entitlement in accordance with the above law, rules and regulation. The relevant Sub- para (2) of
Para 21 of MLR 64 of 1959 is repr oduced herein below:
"(2) If a Jagir is, wholly or partly, in the form of a grant of land, the person in favour
of whom the Jagir subsisted, shall be entitled to retain as full owner the whole of such
land if the area, together with any other area which he may own or possess in any other
capacity is equal to or less than five hundred acres of irrigated land, or thirty -six thousand
produce index units, whichever is more, and if the area exceeds that limit, then such
portion, not exceeding the limit, as he may select, and the excess land shall revert to
Government free from any encumbrance or charge, without payment of any
compensation, and shall be disposed of by the Commission in the manner provided by or
under this Regulation."
11. From the above and ke eping in view the impugned order passed by the Deputy Land
Commissioner, Kachhi dated 28th June, 2008 and upheld by the Senior Member Board of
Revenue. The private respondents/Jagirdars had been directed to submit declaration form for
initiation of proceedings for determining the right/entitlement, if any, of the private respondents
or their predecessors -in-interest under Sub- para (2) of Para 21 of MLR 64 of 1959 and choice for
retaining 500 acres irrigated land or 36000 produce index units (PIUs) of un- irrigated land as the
case may be. The argument of the learned counsel for the petitioners that the Hon'ble Supreme
Court neither set aside the judgment passed by this Court in C.P. No.200 of 1995 nor varied the
same, therefore, in such aspect of the matter, the Deputy Land Commissioner has got no
jurisdiction to pass the impugned order, is not tenable, as in the compliance of the judgment of
the Hon'ble Supreme Court of Pakistan dated 3rd April, 2007, the impugned orders have been
passed keeping in view Para 21(1)(2) of MLR 64 of 1959 and in this respect, the learned counsel
for the petitioners has failed to point out as to whether the impugned order is otherwise beyond
the scope of ibid para of MLR 64 of 1959. No other illegality has been pointed out by the l earned
counsel for the petitioners to warrant interference by this Court in the impugned orders.
In view of the above, the Constitutional Petition No. 694 of 2009, is dismissed and parties
are left to bear their own cost.
ZC/33/Bal Petition dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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