1986 PLP 786 (MLD)

Abrar Hassan for Petitioner. Nasrullah Awan for Respondent No.1. Date of hearing: 31‑10‑1983. NASIR ASLAM ZAHID, J.‑‑In this Constitutional petition, the petitioner challenges the order, dated 31‑12‑1976 of the Federal Land Commission in Suo Motu Revision whereby the order, dated 16‑7‑1972 of the Land Commissioner Sind was set aside, By the order, dated 16‑7‑1972 several alienations made by the petitioner/ declarant in favour of various purchasers through sale agreements executed between 1962‑19611 were validated. According to the Land Commission, the said alienations were by way of sales through agreements with transfer of possession and the transferees were in effective possession of the lands involved, managing the same and appropriating the produce from the said lands and also paying the land revenue. The lands had been purchased by the petitioner from the Government on instalment basis under the Scheme framed by the disposal of surrendered lands under M.L.R. 89/91. The Federal Land Commissioner set aside the order of the Land Commissioner on the ground that the lands vested in the Government and the declarant had no alienation rights in 'the land and further that the transfers were made through agreements of sale which agreements were at best promises to sell lands which were not finalised before the crucial date' that is 21‑12‑1971. The transfers were also considered by the Federal Land Commission, in the circumstances, as incomplete and invalid. The order of the Federal Land Commission has been impugned in this petition. I have heard Mr.Abrar Hussan, learned counsel for the petitioner and Mr. Nasarullah Awan, learned counsel for the respondent No.1.

2. In this case the finding of the Land Commissioner is that the transfers /alienations were made by sale agreements with transfer of Possession and the transferees were in effective possession of land. It was further found by the learned Land Commissioner that the transferees were managing the lands, appropriating produce from the said lands and paying land revenue in respect thereof. These factual findings have not been doubted or set aside by the Federal Land Commission. As observed earlier, the order of the Land Commissioner has been set "side on the ground that ‑permission of the Collector had not been obtained and the transactions were mere agreements of sale and not through sale‑deeds.

3. It may be observed that the Federal Land Commission itself has taken the position that not only complete sales effected through the registered instruments are to be declared bona fide or void but also agreement of sale made during the prescribed period by the declarant. The instructions of the Federal Commission in this regard are to be found at pages 199 to 200 of the Sind Land Reforms Manual, Volume I and they are to the effect that even in a case of a sale agreement made by a person in respect of lands acquired by him under M.L.R. 89/91, where prior permission of the Collector had not been obtained, such a transaction could be confirmed if it is found genuine. From the order of the Land Commissioner it is apparent that the said transaction with delivery of possession were found to be genuine and the Federal Land Commission has not disputed this finding. In the circumstance the transactions in question could hot be invalidated only on the ground that permission of the Collector had not been obtained and the transactions were sale agreements and not complete sales through registered instruments.

4. In support of this petition learned counsel for the petitioner placed reliance on the cases (i) Fariduddin' Hyder v. Member Federal Land Commission 1982 C L C 1942, (ii) Ch. Atta Muhammad v. Federal Land Commission 1979 C L C 294, (iii) Leemo Khan v. Member, Federal Land Commission and P L D 1981 Kar. 114 and (iv) Sachunand and another v. Officer on Special Duty, Federal Land Commission P L D 1981 Kar.

393. These reported judgments support the case of the petitioner that the order of the Land Commissioner could not be set-aside by the Federal Land Commission on the grounds mentioned in the impugned order.

5. As a result, we allow this petition and quash the impugned order, dated 31‑12‑1976 of the Officer on Special Duty, Federal Land Commission declaring the same to have been passed without lawful authority and of no legal effect. There will be no order as to costs. M . Y . H . Petition accepted.