1983 PLP 813 (SCMR)

7. The learned counsel further contended that the transaction of sale and exchange made by the appellant had been scrutinized and 'thoroughly examined by the Land Commission and found to be valid, and particularly after the decision of the Additional Chief Land Commissioner, Punjab, Lahore, all these transactions were past, closed and completed transactions having been acted upon by the parties since long, and, therefore the matter could not be legally re-agitated after a lapse of such a long period and particularly by the proceedings initiated under paragraph 29 of the Regulation by the Chairman who was neither competent under‑ clause (p) nor clause (b) of the third proviso of pare. 29 of the Regulation, 1972.

8. It was further maintained by the learned counsel for the appellant that since the order of the respondent impugned in the writ petition was void ab initio and without jurisdiction, its non‑compliance within the period specified therein, could not disentitle the appellant to invoke the writ jurisdic tion of the High Court merely for the reason that a year's time has been consumed in removing the Office Objection on the writ petition and re‑filing the same.

9. We have examined the contention raised by the learned counsel and find that the appellant in writ petition‑ before the High Court had assailed the order of the Federal Land Commission by filing a petition on 15‑2‑1977 which was returned to him with a few objections. He refiled the petition after about a period of one year i. e. on 5‑3‑1978. The learned counsel relied on P L D 1969 Lah. 147 wherein it was held that delay per se is not sufficient to dismiss a petition. It is only when the petitioner is guilty of delay, combined with some conduct on his part, which acts as estoppel against him, that the petition can be dismissed.

10. Reading paragraph 71 (a) of the Regulation it is clear that 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 Decembers 1971, by any person holding immediately before that date an area of more than 150 acres of irrigated land or 300 acres. of un-irrigated land, or an area equivalent to 12,000 produce index units, shall be and shall be deemed always to have been void and the land so transferred, shall be deemed to have been owned and possessed by him immediately before that and under clause (b) 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 it made in any manner whatsoever by any person holding at any time during the 1st day of March, 1967 to the 19th December, 1971, shall be deemed always to have been void and the land so transferred shall be deemed always to have been owned or possessed .... .by the person by whom it was owned or possessed immediately before that day. Proviso to para. (b) lays down that nothing in this clause shall apply to‑ (i) . (ii) (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; and Explanation III‑to this para reads: In determining whether a transaction referred in clause (b) of para. (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 ...... (ii) under whose management, the land has remained which is claimed to have been transferred ...... (iii) who has been paying the land revenue and other charges in respect of such land, and (iv) who have been receiving the rent for or batai share from such land.

11. As regards general contentions the two transactions of sale the learned counsel for the appellant has not pressed the same. Regarding the exchange transaction, to hold that the transaction is fictitious just on the ground that the area of the two exchanged land is not equal in area or P.1. Us. would not be enough criterion. The Land Commission had to consider the exchange transaction on the principle adopted for the determination of bona fides of the transactions taking into consideration the factors (ii), (iii) and (iv) of Explanation III to aforesaid paragraph (b). Thus the appeal is partly allowed setting aside the judgment and order of the Lahore High Court dated 8‑3‑78 and also the order of the Federal Land Commission dated 20‑9‑1976 to the extent of transaction entered into under Mutation No. 93 dated 5‑2‑

71. The case is remanded to the Federal Land Commission for decision according to paragraphs (b) (H), (iii) and (iv) of Explanation III. Appeal partly allowed.