1994 PLP 20 (CLC)

6. On the contrary, learned counsel for the Federal Land Commission vigorously supported the impugned order by his usual eloquence. He contended that no doubt the bona fides of transfer by declarant/owners in favour of legal heirs were immune from scrutiny under proviso to sub‑para. (b) of para. 7 of the Regulation yet the Land Reform Authorities were fully entitled to examine as to whether these transactions were, in fact, made within the ambit of applicable law. Strength was sought from Aisha Begun v. Chairman, Federal Land Commission (1982 SCMR 1074), Sultan Muhammad Khan v. Federal Land Commission (1983 SCMR 797), Yar Muhammad Khan v. Federal Land Commission (1983 SCMR 812) and Khuda Bakhsh v. Federal Land Commission (1990 SCMR 711). On the basis of this principle, it was stressed that the Federal Land Commission had come to the conclusion that the Mutations Nos. 66, 103 and 195 did not show that the gifts were completed as required by the provisions of Muslim Law of gift. According to the learned counsel three requisites of a gift under Muslim Law were declaration, acceptance and delivery of possession. The mutations noted above did not show the presence of above‑noted three essential elements of gift.

7. We have heard the learned counsel for the parties at a considerable length. In order to appreciate the contentions of the parties, we find it essential to examine the relevant provisions of law i.e. para. 7 of the Regulation and the case‑law cited by the parties. Para. 7 of the Regulation is as follows:

7. Certain transfers void: ‑‑(1) Save as otherwise provided in this Regulation‑‑‑ (a) the transfer of any land and the creation of any right or interest in or encumbrance on any land, made in any manner whatsoever in respect of any area, on or after the 20th day of December, 1971, by any person holding immediately before that date an area of more than one hundred and fifty acres of irrigated land or three hundred acres of un-irrigated land or an area equivalent to twelve thousand produce index units (calculated on the basis of classification of soil as entered in the Revenue Records for Kharif 1969‑70), whichever shall be greater, shall be and shall be deemed always to have been void and the land so transferred or encumbered shall be deemed to have been owned or possessed as the case may be, by the person by whom it was owned or possessed immediately before that date: Provided that in the case of a person to whom the provisions of sub‑paragraph (2) of paragraph 8 apply, no such transfer or creation of any right to interest or encumbrance shall be void unless he was holding on the said date an area more than fourteen thousand produce index units; (b) Save in cases where the Commission is satisfied that it was a bona fide transaction, the transfer of any land and the creation of any right or interest in or encumbrance on any land, made in any manner whatsoever by any person holding at any time during the 1st day of March, 1967 to the 19th day of December, 1971 (both days inclusive) an area equivalent to more than twelve thousand produce index units (calculated on the basis of classification of soil as entered in the Revenue Record for Kharif 1966 and Rabi 1966‑67), shall be and shall be deemed always. to have been void, and the land so transferred or the land on which the right, interest or encumbrance was so created shall be, and shall be deemed always to have been owned or possessed, as the case may be, by the person by whom it was owned or possessed immediately before that day: Provided that any transfer of land or creation of any right or interest in or encumbrance on any land by way of gift by a person to whom this clause applies shall, subject to the next succeeding proviso in no case be held by the Commission to be a bona fide transaction: Provided further that nothing in this clause shall apply to‑‑‑ (i) any transfer of land or creation of any right or interest in or encumbrance on any land by way of gift or otherwsie made by a person in favour of heirs; or (ii) any transfer of land or right or interest therein, by way of gift made by a person in favour of his widowed or unmarried .sister, who has not received her due share of? inheritance of ancestral land; or (iii) any transaction whereby any land was alienated in exchange for an area of land equivalent to the same or substantially same produce index units as the land alienated. Explanation L‑‑For the purposes of this sub‑paragraph and paragraph 10, an heir shall mean the owner's wife or wives, sons, daughters, father, mother and sons and daughters of a deceased son or daughter. Explanation II.‑‑Where any such transaction as is referred to in clause (b) of any right or interest in or encumbrance on any land in favour of a member of the owner's family or the revision of such land to such owner or member, whether through the intermediation of a third person or otherwise, such transaction shall be deemed to be void, and the land so transferred or encumbered shall be deemed to have been owned or possessed as the case may be, by the person by whom it was owned or possessed immediately before such transfer or encumbrance. Explanation Ill.‑‑In determining whether a transaction referred to in clause (b) of paragraph (1) was bona fide or otherwise, the Commission shall, among other matters, take into consideration the following factors: (i) Whether adequate consideration had been paid by or on behalf of the person in whose favour the transfer has been made or any right, interest or encumbrance has been made or any right, interest or encumbrance has been created; (ii) under whose management the land has remained which is claimed to have been transferred or in respect of which any right, interest or encumbrance has been created; (iii) who has been paying the land revenue and other charges in respect of? such land; (iv) who have been receiving the rent for or Batai share from such land. (2) If any question arises where any transfer or other transaction is or is not void under sub‑paragraph (1), the decision of the Commission thereon shall, subject to the provisions of paragraph 29, be final. (3) Nothing in. paragraph (1) shall apply to any transfer of land or the creation of any interest or right or encumbrance on any land made by a person who held on 20th December, 1971, land in excess of the permissible limits under paragraph 8, after he has surrendered to Government, in accordance with the provisions for this Regulation, the land in excess of such limits.

8. This para. came for consideration in Abdul Ghafoor Khan v. Federal Land Commission (PLD 1979 Lah. 375). In this case, Member Federal Land Commission; in exercise of his suo motu powers under para. 29 of the Regulation, came to the conclusion that the transaction of sale made by declarant/owner in favour of his minor sons was invalid. This sale was incorporated in Mutation No.219 which was attested on 28‑1‑1971. Feeling aggrieved, the declarant filed Constitution petition which was accepted by this Court. After the survey of the relevant law, his Lordship Mr. Justice Shafiur Rehman Judge of Lahore High Court (as he then was) held that Member, Federal Land Commission had no jurisdiction in law to examine the merits of sale made by the declarant in favour of his minor sons in view of ‑proviso to clause (b) of para. 7 of the Regulation. The‑same question again cropped up for examination in. Federal Land Commission v. Zarin Qaisha (1984 SCMR 666). In this case the declarant had executed Kabinnama in 1951 by which he alienated some land to his wife Mst. Zarin Qaisha. The transaction could not be incorporated in revenue record for one reason or the other. The Land Reform Authorities declined to give effect to Kabinnama executed by declarant in favour of Mst. Zarin Qaisha. Feeling dissatisfied, Mst. Zarin Qaisha filed a Constitution petition which was accepted by Lahore High Court. In appeal, by the Federal Land Commission, the Supreme Court held:‑‑ "The facts of the present case can serve as a very apt illustration of the foregoing observations. The genuineness of the transaction of 1951, not having been questioned in the proceedings before the Special Tribunals and admitted before us, the relief was refused to the respondents on the basis of a technicality that the transaction was not followed by a mutation or entries in revenue records. It is well known that mutations sometimes are delayed without any fault of the parties concerned. The completeness or otherwise of transaction of alienation of property is not always necessary dependent upon the formalities when the former is admitted. to have taken place. And in so far as the grant of land in lieu of dower by a Muslim husband is concerned no law has been cited before us for coming to a conclusion that it could not be completed without a mutation or other documentary formalities. The learned Judges in the High Court did not make any departure from accepted principles of treatment of admitted facts when restoring the judgment of the Provincial Land Commission which had been set aside by the Federal Land Commission, in exercise of suo motu revisional jurisdiction. Thus, the approach of the High Court in so far as the factual aspect of the case is concerned, was unexceptionable."

9. In yet another case Mst. Tayyaba Khanam v. Chairman, Federal Land Commission (1984 SCMR 1110), Sardar Hamid Hasan Khan made gift of agricultural land measuring 6193 Kanals 13 Marlas to his wife Mst. Tayyaba Khanam and got his statement recorded by the concerned Patwari. Before mutation could be attested, the donor died in year 1974. Mst. Tayyaba Khanam did not file declaration under the Regulation on the assumption that she was not owner in possession of the agricultural land exceeding the limits of 12,000 P.I.U. Mst. Tayyaba Khanam, after the demise of Sardar Hamid Hasan Khan, moved the Chief Laud Commissioner, Punjab for seeking declaration that the transaction of gift made id her favour by Hamid Hasan Khan was a valid transaction. The Chief Land Commissioner agreed with Mst. Tayyaba Khanam and directed the Authorities to sanction the mutation in her favour. The Chairman, Faderal Land Commission, in exercise of his suo motu revisional jurisdiction, came to conclusion and that gift in favour of Mst. Tayyaba Khanam was invalid. Against this order, Mst. Tayyaba Khanam filed Constitution petition which was dismissed by the High Court on 15‑7‑1976. Feeling dissatisfied, Mst. Tayyaba Khanam filed appeal which was accepted by the Supreme Court in following words:‑‑ 'The Federal Land ‑Commission, while exercising suo motu powers, under paragraph 29 of M.L.R. 115, had only limited powers to examine the correctness and propriety of the order of the learned Chief Land Commissioner being explicit and detailed on the subject, the limited powers under paragraph 29 could not be exercised in the manner in which these have been so exercised. The wording of paragraph 29 corresponds with the wording of section 435 of Cr.P.C. and the limitation in force thereon would also be applicable to the exercise of powers under paragraph

29. Reliance was placed on Chief Land Commissioner v. Maula Dad (1978 SCMR 264), Abdul Hamid Khan v. Officer on Special Duty, Federal Land Commission (1979 CLC 211) and Sain Bux and others v. Officer on Special Duty (1980 CLC 1395). The dictum of the Supreme Court in PLD 1974 SC 139 is only applicable where there has been no ignoring of record or misreading thereof. Moreover; the Land Reforms Regulation No.115 being confiscatory in nature and appropriation without any compensation, the Supreme Court and the High Court, in order to do complete justice, had the jurisdiction and the powers to go into the facts and this is to be done in a far more effective manner."

10. From the above survey of applicable law and precedents, following principles of law are deducible:‑‑ (i) The suo motu power of Federal Land Commission under para. 29 of the Regulation is almost analogous to the revisional power of Criminal Courts under section 439 of the Code of Criminal Procedure. The revisional Court, thus, under para. 29 of the Regulation is empowered to summon the record of subordinate authorities for the purpose of satisfying about the correctness/validity of the orders passed by them/actions taken by them/proceedings initiated by them against owners of land. The Federal Land Commission, thus, can set aside the orders/actions of the subordinate authorities if it comes to the conclusion that orders/actions suffer from excess of jurisdiction, absence of jurisdiction or are in defiance of some express provision of law. This jurisdiction is amalgam of wide as well as limited power. This proceeds upon the principle of doing ex debitio justice and is not entitled to victimise any one. (ii) The alienations made by way of gifts or transfers made by declarant to his legal heirs/persons enumerated in proviso to sub‑para. (b) of para. of the Regulation are immune from scrutiny of Land ,Reform Authorities. (iii) The Regulation is confiscatory in nature and embodies the principle of expropriation of the property of citizens without payment of the compensation. It has, so, to be construed strictly and in favour of the subject.

11. Applying these principles to the facts of this case, it is clear that donees are legal heirs of declarant; that owner filed declaration wherein these transactions were expressly mentioned. and the Deputy Land Commissioner, after due inquiry, found them valid transactions; that donees appeared before the Deputy Land Commissioner and stated explicitly that they have accepted the gift and had become owner of the donated property. From the perusal of the impugned order, it becomes crystal clear that Federal Land Commissioner did not at all scrutinise the order of the Deputy Land Commissioner. He rather did not have any look upon it and proceeded to perform the role of Deputy Land Commissioner. This, too, he did without hearing donees. The approach of the learned Federal Land Commissioner in his suo motu power was clearly illegal and beyond the parameter of para. 29 of the Regulation. The impunged order is, therefore, in our estimation without any lawful sanction and cannot be sustained. The same is declared. to have been passed without any lawful authority and is, therefore, found to be of no lawful consequence.

12. As a result of above discussion, these constitution petitions succeed with requested reliefs. Taking into consideration the peculiar features of the case, we are not inclined to burden respondents with costs. AA./M‑1180/L??????????????????????????????????????????????????????????????????????????????????? Petitions accepted.