Ameer Abdullah etc. vs Member Federal Land Commission Islamabad etc.

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JUDGMENT SHEET

IN THE LAHORE HIGH COURT, LAHORE

JUDICIAL DEPARTMENT

JUDGMENT

W.P.No.12078/2014

Ameer Abdullah etc. VS. Member, Federal Land Commission, Islamabad etc.

Date of hearing : 20.06.2022 Petitioners by : Mr. Mehram Ali Bali, Advocate in W.P.No.12078/2014 Rashid Yameen Kazmi, Advocate.

Rai Khadim Hussain Kharal, Advocate in W.P.No.32541/2013 Respondents by : Mr. Ali Hur Jamal, Assistant Attorney General for Pakistan Mr. Wajahat Hussain Dogar, Assistant Advocate General Rai Ikramullah Bhatti, Advocate

Ch. Muhammad Iqbal, J:- Through this single judgment, we intend to decide the titled Writ Petition [No.12078/2014] as well as Writ Petition No.32541/2013 as both these petitions have filed against the same order.

2.Through these writ petitions, the petitioners have challenged the validity of the order dated 04.12.2013 whereby the Member, Federal Land Commission, Islamabad accepted the Revision of the respondents No.2(i) to (vi), set aside the order dated 16.02.1973 passed by the Land Commissioner, Sargodha Division and the order dated 21.01.1974 passed by the Legal Advisor, Punjab Land Commission, Lahore were set aside.

3.Brief facts of the case are that Rai Muhammad Khan, predecessor-in-interest of the respondents No.2(i) to (vi), declarant submitted his declaration before the Deputy Land Commissioner, Jhang and declared an area measuring 307.1551

Acre in various villages of District Jhang. During the scrutiny an area of 02 Acre was further found in his name in District Sargodha, thus total area measuring 307.1669 Acre equal to 14341 PIUs was verified. The declarant accepted the said assessment and the Deputy Land Commission, Jhang passed order dated 26.05.1972 and resumed the excess land accordingly. Against the said order, Rai Muhammad Khan filed appeal before the Land Commissioner, Sargodha which was dismissed vide order dated 16.02.1973. Rai Muhammad Khan declarant did not submit L.R VII Form before 20.05.1972 under Para 8 (2) of the MLR No.115 and filed application on 10.07.1972 which was rejected by the Land Commissioner, Sargodha vide order dated 22.09.1972. Against the said order, he filed Revision No.305 of 1973-74 which was dismissed by the Legal Advisor, Punjab Land Commission, Lahore on 21.01.1974. After resumption, the land was allotted to the landless tenant/ the petitioners. A second round of lis commence when on 08.10.2011, the legal heirs of Rai Muhammad Khan, [respondents No.2(i) to (vi)] filed a revision petition against the aforesaid orders before the Federal Land Commission, Islamabad who accepted the same, set aside the aforementioned orders and land was restored in favour of Rai Muhammad Khan. Hence these writ petitions.

4.We have heard the arguments of learned counsels for the parties and have gone through the record with their able assistance.

5.Before discussing the merits of this case, it is appropriate to understand the scheme of law. The Government of Pakistan in order to improve the economic well-being of peasantry and making agriculture a profitable vocation, promulgated the Land Reforms Regulation 1972 (MLR 115) on 11.03.1972 (to be referred hereafter as “Regulation”) whereby maximum ceiling of

the own land was fixed for the declarants and the excess land was made allotable to the landless tenants as per policy / law. Rai Muhammad Khan declarant who holds land beyond the ceiling prescribed by the law, thus the Deputy Land Commissioner, Jhang, after hearing the respondent No.2, passed order dated 26.05.1972 and resumed the excess land owned by respondent No.2 under the Regulation ibid. The said order was assailed by the respondent No.2 through an appeal before the Land Commissioner, Sargodha Division which was rejected on 16.02.1973. These orders were never assailed by the respondent No.2 before any forum, as such, the same have become past and closed transaction. Reliance is placed on Pakistan International Airlines Corporation Vs. Aziz ur Rehman Chaudhary and another (2016 SCMR 14). The respondent No.2 also did not file any document under Section 8(2) of the Regulation ibid regarding exclusion of the some portion of the land within stipulated period.

6.As per structured scheme of law any person if aggrieved of any order passed by the authority established under the Regulation has a remedy of Revision before the Federal Government to be filed within a period of 60 days. For ready reference, Para 29 of the Regulations ibid is reproduced as under:

29.Revisional powers of the Federal Government.– The Federal Government, or any person authorized by it in that behalf, may at any time, of its, or his own motion or otherwise, call for the record of any case or proceedings under this Regulation [or under the repealed Regulation] which is pending or in which a Commission or any other authority appointed under this Regulation, [or under the repealed Regulation] other than the Federal Land Commission constituted under paragraph 4–A, has passed an order, for the purpose of satisfying itself or himself about the correctness, legality or propriety of such an order, and may pass such order in relation thereto as the Federal Government or, as the case may be, such person thinks fit: Provided that the Federal Government may, from time to time, specify the case or class of cases in which it desires to pass final orders:

Provided further that no order shall be passed under this paragraph revising or modifying an order affecting any person unless such person has been afforded an opportunity of being heard:

Provided further that the record of any case or proceedings in which a Commission or other authority has passed an order shall not be called for under this paragraph by the Federal Government or the person authorized by it–

(a)of its or his own motion, after the [30th day of November, 1976], or

(b)on the application of any aggrieved person made after the expiration of sixty days from date of such order or from the enactment of the Land Reforms (Amendment) Act, 1973, whichever is later, excluding the time requisite for obtaining a copy of such order.”

7.The respondent No.1/Member, Federal Land Commission, Islamabad, while passing the impugned order dated 04.12.2013, invoked jurisdiction under Section 27 of the Land Reforms Act, 1977. For ready reference, Section 27 of the Act ibid is reproduced as under:

“27. Powers of the Federal Government. The Federal Government may, at any time, of its own motion or otherwise, take cognizance of a case not taken up by a Commission or withdraw a case pending before a Commission or call for a case decided by a Commission or any authority empowered by a Commission in this behalf, and pass such order as it may deem necessary and the order so passed shall be final: Provided that no order, under this section, shall be passed, adversely affecting the rights of any person, unless such person has been given an opportunity of being heard.”

The respondent No.2 filed revision petition on 08.10.2011 without mentioning whether he had filed the revision petition under Section 27 or 29 of the Act ibid rather the Member, Federal Land Commission, on its own, presumed that the revision has been filed by the respondent No.2 under Section 27 of the Act ibid, which is against the record. Furthermore, Section 3 of the Land Reforms Act, 1977 describes that the said enactment shall have prospective effect only. The entire proceedings in this case i.e. resumption of the land by the Deputy Land Commissioner, Jhang on 26.05.1972, dismissal of appeal of respondent No.2 by the Land Commissioner, Sargodha on 16.02.1973 as well as dismissal of revision by the Legal Advisor, Punjab Land Commission, Lahore on 21.01.1974, were conducted under the Regulation ibid, thus, the further proceedings in this case have

also to be done under the Regulation ibid. The respondent No.2 had a remedy to file revision under Section 29 of the Regulation ibid before the Federal Land Commission within a period of 60 days which was not availed by him. In these circumstances, the Member, Federal Land Commission erred in law while invoking the Section 27 of the Land Reforms Act, 1977. The Federal Land Commission has no authority to re-open a past and close transaction with respect to the orders passed by the Land Commission. Reliance in this regard is placed on a case cited as Imad Ali Vs. Federal Land Commission, Rawalpindi and 2 others (PLD 1987 Karachi 8), relevant portion whereof is reproduced as under:

“2..... Under the provisions of the Land Reforms Regulation, 1972 the case could not be re-opened after 30-11-1976 and in the Land Reforms Act of 1977 also no provision could be pointed out by the learned counsel for the Federal Land Commission, under which an order passed by a Land Reforms Authority under Paragraph 7(1)(b) of Land Reforms Regulation, 1972 could be re-opened after 30-11-1976.”

8.Furthermore, the time barred petition was illegally entertained and decided in favour of the respondent No.2 by the Member, Federal Land Commission without taking into account the question of limitation. This Court in a recent judgment cited as Province of Punjab through Secretary, Government of Punjab, Labour and Human Resources Department Vs. Chairman, Federal Land Commission, Islamabad and others (2021 CLC 1082) has decided alike matter as under:

“6. A person if aggrieved of any order passed by the authority established under the Regulation has a remedy of Revision before the Federal Government to be filed within a period of 60 days. For ready reference, Para 29 of the Regulations ibid is reproduced as under:

29.Revisional powers of the Federal Government.– The Federal Government, or any person authorized by it in that behalf, may at any time, of its, or his own motion or otherwise, call for the record of any case or proceedings under this Regulation [or under the repealed Regulation] which is pending or in which a Commission or any other authority appointed under this Regulation,

[or under the repealed Regulation] other than the Federal Land Commission constituted under paragraph 4–A, has passed an order, for the purpose of satisfying itself or himself about the correctness, legality or propriety of such an order, and may pass such order in relation thereto as the Federal Government or, as the case may be, such person thinks fit:

Provided that the Federal Government may, from time to time, specify the case or class of cases in which it desires to pass final orders:

Provided further that no order shall be passed under this paragraph revising or modifying an order affecting any person unless such person has been afforded an opportunity of being heard:

Provided further that the record of any case or proceedings in which a Commission or other authority has passed an order shall not be called for under this paragraph by the Federal Government or the person authorized by it–

(a)of its or his own motion, after the [30th day of November, 1976], or

(b)on the application of any aggrieved person made after the expiration of sixty days from date of such order or from the enactment of the Land Reforms (Amendment) Act, 1973, whichever is later, excluding the time requisite for obtaining a copy of such order.”

7.The aforesaid provision makes dysfunctional the remedy of Revision after expiry of 60 days of passing of an order by the Federal Government or the person authorized by it. This case revolves around the provision of Para 29 of the Regulation ibid, as the main emphasis of learned counsel for the petitioners is that the orders of Land Commissioner and Addl. Land Commissioners passed on 16.10.1974, 06.03.1975 respectively were challenged by the respondent in Revision Petition under Section 29 of the Ordinance ibid on 27.06.1996 after inordinate delay of more than two decades and under the aforesaid provision, the Chairman, Federal Land Commission was not competent to entertain, adjudicate or reopen the case after 30.11.1976. Reliance in this regard is placed on Imad Ali Vs. Federal Land Commission, Rawalpindi and 2 others (PLD 1987 Karachi 8), relevant portion whereof is reproduced as under:

“2..... Under the provisions of the Land Reforms Regulation, 1972 the case could not be re-opened after 30-11-1976 and in the Land Reforms Act of 1977 also no provision could be pointed out by the learned counsel for the Federal Land Commission, under which an order passed by a Land Reforms Authority under Paragraph 7(1)(b) of Land Reforms Regulation, 1972 could be re-opened after 30-11-1976.”

In a case cited as Muhammad Ramzan Vs. Federal Land Commission and others (2004 MLD 805), a learned Division Bench of this Court held that the proviso 3 to Para 29 of the Land Reforms Regulation, 1972 placed a complete embargo on Suo Motu exercise of revisional powers by the Federal Government or by a person authorized by it in this behalf after 30-11-1976. The relevant portion of the judgment (supra) is reproduced as under:

“7. Bare reading of the above said provisions of law reveals that the 3rd proviso to above-quoted paragraph 29 placed a complete embargo on suo motu exercise of revisional powers by the Federal Government or by a person authorized by it in this behalf after 30-11-1976. This position of law was affirmed by the Hon’ble Supreme Court of Pakistan in the case of “The Chairman, Federal Land Commission, Islamabad and another v. Akhtar Abbas” (PLD 1989 SC 550) and in the case of Government of N.W.F.P through Secretary, Forests, Fisheries and Wildlife, Peshawar and others v. Federation of Pakistan and others (1998 SCMR 36) wherein it was held that:- “A careful reading of the above provision would show that the revisional powers contained in the main paragraph 29 of MLR 115 are not unfettered but are controlled by the three provisos appended to it. Under the first proviso, the Federal Government may specify the cases or class of cases in respect whereof the power of revisional may be exercised. Under the second proviso the Federal Government or its delegate cannot modify or revise an order which affects the right of any party unless such party has been given an opportunity of hearing in the case. The third proviso places complete embargo on the exercise of the suo motu revisional power by the Federal Government or by a person authorized by it in this behalf after 30th day of November, (emphasis supplied) Another reliance is placed on judgment dated 09.10.2001, passed by a learned Division Bench of this Court in Writ Petition No.2693/1990 wherein following observations were made:

“8. We would be reproducing here the 3rd proviso to the said para-29:- Provided further that the record of any case or proceedings in which a Commission or other authority has passed an order shall not be called for under this paragraph by the Federal Government or the person authorized by it:- a) of its or his own motion, after the [30th day of September, 1975], or

(b)on the application of any aggrieved person made after the expiration of sixty days from date of such order or from the enactment of the Land Reforms (Amendment) Act, 1973, whichever is later, excluding the time requisite for obtaining a copy of such order.”

It is the said sub clause-b of the said para-29 which has been invoked by respondent No.1 while dealing with the application filed by the tenants. We find that respondent No.1 has conveniently ignored the said clause (a) of the said 3rd proviso. To our mind, the said 3rd proviso places bar on the respondent No.1 from calling for record of any case or proceedings on his own motion after 30.11.76. We, therefore, do hold that respondent No.1 had no lawful authority to pass impugned order in exercise of his suo moto powers in the year 1990. Needless to state that this is the only provision of law which authorised the Federal Government or a person authorised by the said Government to call for records in a case decided under the said MLR-64.

(emphasis supplied)

8.Admittedly, the final order in appeal of the respondent No.3 was passed by the Additional Chief Land Commissioner, Punjab on 06.03.1975 whereas the Revision Petition under Para 29 of the Land Reforms Regulations, 1972 was filed on 27.06.1996 i.e. after lapse of 21 years and 03 months whereas Under Para 29 of the Regulations ibid, the prescribed period of limitation for filing the Revision against an adverse order is 60 days, as such, the revision petition of respondent No.3 before the Chairman FLC was badly time barred and could not be entertained at such belated stage.

9.Further, the Land Reforms Regulation, 1972 (MLR No.115 of 1972) is a special law, Para 29 whereof provides 60 days period of the limitation for calling in question the validity of an order by the lower Land Commission fora with the only exception of exclusion of time consumed in obtaining certified copies of the said order otherwise the limitation is not condonable by the Chairman Federal Land Commission.”

As the revision petition of the respondent No.2 was badly time barred by more than three decades, as such, the Member, Federal Land Commission was not competent to entertain the revision at belated stage. Even otherwise Proviso to Section 27 lays an embargo on the unbridled exercise of Revisional jurisdiction that it shall not effect the right of adverse party unless a fair reasonable hearing is afforded to it but in the case in hand no document has been produced to show that any hearing was granted to the petitioners, which flaw is fatal that dismantled the legality of the impugned order.

9.So far as the non-submission of application Form No.LR VII under Section 8(2) of the Regulations ibid, the target date was fixed as 20.05.1972 whereas the respondent No.2 filed application on 10.07.1972 without valid documents showing ownership of an agricultural tractor. The said application was rejected on 22.09.1972. The revision of the respondent No.2 was also dismissed by the Legal Advisor, Punjab land Commission, Lahore on 21.01.1974.

10.Section 29 of Regulation ibid makes it crystal clear that after the expiry of the cut-of date, the Federal Land Commission has no jurisdiction to re-open the past and close transaction and all those proceedings which have become final. In the instant case, land in question, after resumption from the predecessor of respondent No.2, had been allotted to the landless tenants and after 35 years such matter could not be re-opened. Thus, the impugned order passed by the Member, Federal Land Commission suffers from patent perversity / irregularity and illegality which is liable to be set aside.

11.In view of above, both these writ petitions are allowed and the order dated 04.12.2013 passed by the Member, Federal Land Commission, Islamabad is declared as unwarranted by law and same is hereby set aside; and resultantly, the revision petition of respondent No.2 is dismissed.

(Safdar Saleem Shahid) (Ch. Muhammad Iqbal) Judge Judge

Approved for reporting.

Judge Abdul Hafeez