P L D 1980 Karachi 122 (PLP)

ZAFFAR HUSSAIN MIRZA, J.-Petitioner No. 1 Ghulamullah Shah being required under paragraph 12 of the Land Reforms Regulation, 1972 (hereinafter referred to as the Regulation) filed the requisite declaration showing, inter alia, alienations of lands by way of gift in favour of his sons petitioners Nos. 2 to 6 in Delis Akri, Araro and Karundi of Taluka Faiz Ganj, District Khairpur. On scrutiny of the aforesaid declaration the Land Commissioner, Sind by his order dated 19-7-72 upheld the alienations as valid on the ground that _ the same were in favour of the legal heirs of the declarant and as such are covered by Explanation I to paragraph 7(1)(b) of the Regulation. On receipt of letter dated 11-5-73 from the Member, Federal Land Commission, Rawalpindi, the learned Land Commissioner re-opened the case in Suo Motu Review Jurisdiction vesting in him and reexamined the case in relation to the objection raised, i. e. that the acceptance of the gifts by the donees was not available on the Tapedar's record. After hearing the counsel for the declarant and perusing the relevant record, the learned Commissioner reaffirmed his original order on the finding that the donees were proved to be infffective possession of the land, were enjoying the produce and paying the land revenue. In this view of the matter he found no reason to interfere with his earlier orders and disposed of the review proceedings accordingly by his order dated 9-4-74. The Additional Chief Land Commissioner, Sind, however, in exercise of his Suo Motu Revisional Jurisdiction, once again took up proceedings for examination of the orders passed by the Land Commissioner upon being moved in this behalf by the Officer-in-Charge, Inspection Team. This time the following objections were raised to the validity of the gift alienations: (i) That the alienations were by oral statement and the word "wirhasat" has been used in the recorded statement which was not the proper term to be used for alienation by way of gift. (ii) That there was no express acceptance of the gift by the donees nor is there express declaration of the gift by the donor.

2. After hearing the declarant the learned Additional Chief Land Commissioner came to the conclusion that the use of the word "wirhasat" in the statement of the declarant recorded in the Dakhil-Kharij Register quite clearly conveyed the sense that the alienations were by way of gift. But he was of the view that there was no express acceptance by the donees in respect of the gift alienations and that in proof of implied acceptance there was no independent evidence on record available. He also found that the land revenue continued to be paid by the donor up to the crucial date in respe4t of land in Delis Araro and .Akri and 'that no independent evidence :was produced to prove that possession of the land had been actually transferred to the donees before the crucial date. In this view of the matter, by his order dated 27-12-74 the learned Additional Chief Land Commissioner held that the gifts were incomplete and set aside the orders passed by the Land Commissioner declaring the alienations to be void. The revision filed by the declarant Ghulamullah Shah against the aforesaid order under Paragraph 29 of the Regulation was dismissed by the O. S. D., Federal Land Commission on 28-12-76.

3. By the present petition the petitioners seek to challenge the legality of the last-mentioned two orders passed by the Additional Chief Land Commissioner, Sind and O. S. D., Federal Land Commission.

4. Syed Ghaus Ali Shah, learned counsel appearing for the petitioners, in support of the petition raised the following contentions: (i) That the order of the learned Additional Chief Land Commissioner was without jurisdiction as once the delegated power under paragraph 7 of the Regulation was exercised by the Land Commissioner, the same stood exhausted and could not be again exercised by the Additional Chief Land Commissioner who was the co-delegatee of the power from the Sind Land Commission. (if) That no notice was served on the donees (petitioners Nos. 2 to 6) and no opportunity of hearing was afforded to them, with the result that the impugned orders were vitiated for violation of the rule of audi alteram parrem. (iii) That delivery of possession and acceptance of the gift were not essential conditions for validity of the gifts as the donees were minor sons of the donor. As to the first contention the learned counsel referred us to the Notification SLC/l/73/7 issued by the Sind Land Commission in exercise of the powers vesting in it under paragraph 5 of the Regulation which, inter alia, delegated the powers to various Officers mentioned therein. The material part of the notification- may with advantage be reproduced as under:- ?????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????? Power.??????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????? ??????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????? ?????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????? ???????????? Authority to whom '?????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????? ??????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????? ??????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????? ?????????? Delegated ??????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????

1. Powers to decide whether any?????????????????????????????????????????????????????????????????????????????????????????????????? ?????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????? Chief Land ?????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????? transfer etc., is or is not???????????????????????????????????????????????????????????????????????????????????????????????????????????????????? ?????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????? ?????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????? Commissioner, Sind ?????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????? void, vesting in the Sind Land??????????????????????????????????????????????????????????????????????????????????????????????????????????? _??????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????? and Land Commissioner, ?????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????? Commission under paragraph 7????????????????????????????????????????????????????????????????????????????????????????????????????????? ?????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????? Sind, only. ?????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????? of Land Reforms Regulation, ?????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????? 1972 (MLR-115) . The perusal of the aforesaid notification shows that the Chief Land Commissioner, Sind and the Land Commissioner, Sind were both concurrently delegated powers under paragraph 7 of the Regulation. It was accordingly urged that when the Land Commissioner by virtue of his delegated authority, ratified the gift alienations. the, order must be deemed to have been passed by the Commission itself. It, therefore, follows that after the transaction was duly validated? in the aforesaid manner by the Commission, the Additional Chief Land Commissioner could not in exercise of his ordinary powers of suo motu Revision interfere with such orders, as in the matter of exercise of powers under paragraph 7 he did riot enjoy -a superior position but was a co-equal delegatee of the power along with the Land Commissioner. The counsel sought support for his contention from West Pakistan Akard Commbnion v_ Fateh Ullah Khan (1), in which the effect of an identical notification using the same phraseology issued under the West Pakistan Land Reform- Regulation, 1959, was considered by their Lordships. It was observed "On a plain reading of this notification, it seems clear that powers under paragraph 7, Part III of the Regulation to decide whether a transfer is or is not void, the Commission had delegated, without reservation, concurrent and co-ordinate powers both to the Chief Land Commissioner (1)PLD 1971 SC393 and the Land Commissioner, and thus any element of control or subordination of the latter to the former in this respect was specifically eliminated. In the earlier Notification No. 48 ibid, the power of control and superintendence of the Chief Land Commissioner over the subordinate Officers including the Land Commissioner was retained, limiting it only to the exercise of the ordinary powers of those Officers in their respective jurisdictions and not to the powers specially exerciseable by them as delegatees of the Commission. Mr. A. M. Leghari, in his capacity as the Land Commissioner, ratified the gifts in dispute in his delegated authority from the Commission with which he was duly invested by the aforesaid notification, and his orders must be deemed to have been passed by the Commission itself. Under the law as it stood, there was thus no question of those orders being amenable to appeal or revision before the Chief Land Commissioner, whose powers, as an equal delegatee, were at par in this behalf with those of the Land Commissioner." Their Lordships, however noticed an amendment effected in the West Pakistan Land Reforms Regulation, 1959, whereby the orders passed by subordinate Officers in exercise of delegated authority under the Regulation were to be subject to appeal, review or revision, in the same manner, and to the same extent as any other order passed by such Officer. As a consequence of this amending provision which was given retrospective operation, it was held that the Chief Land Commissioner competently exercised his revisional jurisdiction as against the order .passed by the Land Commissioner. It will be convenient now to set out paragraph 5 of the present Regulation, which is in the following terms: "A Commission may, by notification in the official Gazette, direct. that the powers exerciseable by it under this Regulation may, subject to such conditions, including provisions as to appeal, revision or review, if any, as may be specified in the notification, be exercised also by any of its Members or Officers or Authorities subordinate to it." The plain reading of paragraph 5 clearly shows that contrary to the amended paragraph 5 of the West Pakistan Land Reforms Regulation, 1959 the Commission has been empowered to subject the delegation of authority to the condition that any order passed in exercise of such delegated authority shall be subject to appeal, revision or review to the higher Officers in the hierarchy. There is thus no built in provision as to the case of the former Regulation making the orders passed in the exercise on delegated authority is subject to appeal, revision or review but in the present law it has been left to the Commission to make such .provision in the notification of delegation. The perusal of the notification, as reproduced above, however, shows that no. such conditions were imposed on the power delegated to the Land Commissioner. Mr. Nasrullah Awan, learned counsel for respondent No. 1 was unable to show to us any such notification whereby the power delegated to Land Commissioner was made subject to the incidents of appeal, revision or review. The result is that, as laid down by their Lordships of the Supreme Court, orders passed by the Land Commissioner as delegate of the Commission in exercise of powers under paragraph were not amenable to appeal, revision or review by the Chief Land Commissioner.

5. As to the second contention it is not .in dispute that the impugned orders were passed without notice to petitioners Nos. 2 to 6 who are the donees and had acquired valuable rights by the validation of the alienations in their favour. It is well established that in absence of express provision to the contrary, the rule of natural justice has to be read into every statute where powers are vested in the statutory authority to pass orders affecting the) interest of any citizen. Subject to what has been stated on the first point urged before us, therefore, the Additional Chief Land Commissioner was under obligation to issue notice to the aforesaid petitioners/donees before passing the impugned order. In absence of such notice or other opportunity of hearing afforded to them, the order was patently without jurisdiction and a nullity in law. The case could have been remanded back to the said Officer for fresh decision after notice to the donees but in the view that we have taken 6V the matter that the Additional Chief Land Commissioner had no superior power to revise the order of the Land Commissioner under paragraph 7 of the Regulation, it is not necessary to do so.

6. Lastly the ground on which the learned Additional Chief Land Commissioner declared the gift alienations as void is also untenable. Having regard to the fact that admittedly the donees were the minor sons of the donor, the question of independent evidence of acceptance of the gift was immaterial. In Ali Ahmed v. Government of Sind (1), a D. B. of this Court held in somewhat similar circumstances that it is not the requirement of a valid gift under the Muslim Law that the acceptance of the gift by a donee should be in express terms, for, acceptance can even be implied. It was further held that a gift of lands in occupation of haris may be completed by the donor asking the haris to attorn to the donee or by getting the mutation entries effected in donee's favour in the Record of Rights. In the case of a gift by a father to his minor child, it was pointed out, that no transfer of possession is required and all that is necessary is to establish the bona fide intention to make the gift. The requirement of change of possession in such a case is not necessary for the father itself is the person to receive possession as the guardian of his son. In the light of the aforesaid statement of law in the case under reference, it was not even necessary for the minor donees to establish that possession was transferred to them much less that acceptance of gift was recorded.

7. For the foregoing reasons, we hold that the impugned orders were passed without lawful authority aid are of no legal effect. We, .therefore, allow this petition arid set aside the aforesaid two orders with the result that the order passed by the Land Commissioner dated 19-7-72 upholding the alienations shall be restored and further action may be taken by the concerned Authorities in pursuance thereof. We leave the parties to bear their own costs. S. Q.?????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????? Petition allowed. (1) P L D 1976 Kar. 316