1984 PLP 1875 (CLC)

NASIR ASLAM ZAHID, J. The case of the 4 petitioners and respondents Nos. 2 to 5 is the same. One Talib Rasool, a declarant under Land Reforms Regulations, 1972 (M. L. R. 115), had entered into sale agreements with petitioners and respondents Nos. 2 to 5 in respect of lands that had been surrendered/repurchased by the declarant. The Land Commissioner, Sind Hyderabad by his order dated 9‑8‑19 % 2 accepted the alienations made through the said Sale Agreement. The order dated 9‑8‑1972 reads as follows :‑- "All the above‑mentioned alienations are by way of Sale Agreement with transfer of possession. The transferees are in effective possession of the land. They are managing it, appropriating the produce and paying the Land Revenue also. The declarant has created rights of the transferees in the land as envisaged under para. 7(1)(b) of the Regulation, "which rights require to be protected. I, therefore, hereby declare that the rights so created by the declarant, should stand protected."

2. Pursuant to the order dated 9‑8‑1972 passed by the Land Commis sioner Sind, the Deputy Land Commissioner, Sanghar passed a consequential order dated 31‑10‑1972 observing that as all alienations made by the declarant Talib Rasool had been accepted by the Land Commissioner, no land remained in Khata of the declarant.

3. However, the Federal Land Commission reopened the matter and by order dated 27‑11‑1976 of Mr. Muhammad Irshad Khan, Officer‑on‑Special Duty, Federal Land Commission, the alienations made by Talib Rasool in favour of the petitioners and respondents Nos. 2 to 5 were declared to be void on the ground that the lands, subject‑matter of the Sale Agreements between declarant Talib Rasool and the 4 petitioners and respondents Nos. 2 to 5, were surrendered/repurchased land and no permission for the transfer of lands had been obtained from the Deputy Commissioner as required under para. 10 of the Scheme framed for disposal of evacuee surrendered land and at the time Sale Agreements had been entered into all the instalments in respect of the land in question had not been paid by the declarant to the Government.

4. Learned counsel for the petitioners had drawn our attention to the decision, dated 20‑8‑1973 of the Federal Land Commission which appears at page 199‑200 of Sind Land Reforms Manual, Volume I published by the Sind Land Commission in August, 1974. This decision was taken by the Federal Land Commission in respect of transfers of land acquired under M. L. R. 89/91. and the same was circulated on 10‑12‑1974. The said decision of the Federal Land Commission reads as follows :‑

"In cases of sale or sale agreements, where the prior permission of the Collector was not obtained, all such transactions are to be reopened and thoroughly scrutinized by the Land Commissioner and if they are found to be genuine, they may be confirmed in spite of the fact that the permission of the Collector was not obtained. However, gifts made by the grantees of land under M. L. R. 89/91 should be treated as void and should be resumed immediately and a compliance report sent to the Federal Land Commission."

5. The learned counsel for the petitioners and respondents Nos. 2 to 5 have also relied on the following reported decisions of this Court ‑‑ (i) Ali Khan v. Additional Chief Land Commissioner P L D 1980 Kar. 189. (ii) Mahfoozur Rehman Babar v. Federal Land Commission P L D 1980 Kar. 427. (iii) Limo Khan v. Member of Federal Land Commission P L D 1981 Kar. 114. (iv) Sachunand v. Officer‑on‑Special Duty P L D 1981 Kar. 393.

6. The decision of the Federal Land Commission reproduced above itself is that in case of surrendered/repurchased land, the transactions of sale through Sale Agreements are to be confirmed if they are found to be genuine even though prior permission of the Collector was not obtained for the sale of the land. Furthermore, the reported decisions of this Court cited by the learned counsel for the petitioners and respondents Nos. 2 to 5 also support the proposition that under M. L. R. 115, for a transaction of sale to be validated it is not necessary that the transaction must be a completed de jure transaction with the transfer deed registered under the Registration Act.

7. That only ground on which the transactions in favour of the peti tioners and respondents Nos. 2 to 5 have been declared to be void by the Federal Land Commission in the instance case is that no permission for the transfer of the land had been obtained by the declarant from the Deputy Commissioner. We are of the view that the transaction could not be invali dated on this ground by the Federal Land Commission. We have referred earlier to the order dated 8‑9‑1972 of the Land Commissioner Sind, Hyderabad. In the said order dated 9‑8‑1972 the Land Commissioner, Sind, Hyderabad found that the transferees were in possession of land, they were managing it, appropriating the produce and also paying the land revenue. These findings of the Land Commissioner have not been challenged by the Federal Land Commission. As observed earlier, the only ground on which the transactions in favour of the petitioners and respondents Nos. 2 to 5 had been invalidated was that permission for transfer of the land bad not been obtained from the Collector. We have already observed that on this ground the transactions could not have been invalidated.

8. Constitutional Petition No. D‑332 of 1977 is allowed and the impugned order dated 27‑11‑1976 of the Officer‑on‑Special Duty, Federal Land Com mission is quashed to the extent the said order invalidated the sale transactions in favour of the 4 petitioners and respondents Nos. 2 to

5. There will be no order as to costs. M. B. A. Petition allowed.