2004 PLP 805 (MLD)

3. The orders of resuming the land from Muhammad. Sharif Khan and also the order dated 24‑10‑1973 through which the plea of the declarant that the transfer made by him vide mutation No.56, dated 23‑8‑1969 was in fact a sale was rejected and the review petition against the order dated 24‑10‑1973 was also dismissed on 26‑3‑1976, have been set aside by the Chairman, Federal Land Commission in suo motu revisional jurisdiction while exercising powers under para. 29 of MLR 115, through the impugned order dated 5‑5‑1990.

4. Learned counsel for the petitioner contends that impugned order dated 5‑5‑1990 was without jurisdiction as the same was passed by respondent No. 1 Chairman. Federal Land Commission when the suo motu revisional powers vesting in the Federal Government or by a person authorized by it, had ceased with effect from 30‑11‑1976. Reliance has been placed on the case reported as Government of N.‑W.F.P. through Secretary, Forests, Fisheries and Wildlife, Peshawar and others v. Federation of Pakistan and other (1998 SCMR 36).

5. Conversely, the learned counsel for the respondents contends that the petitioner has no locus standi to challenge the impugned order and the present writ petitions have been filed after 1 year, 3 months and 1 year and 5 months of passing the impugned order. Reliance has been placed on:‑‑ Mahmoona and others v. Ilam Din and 6 others (PLD 1984 Lahore 228). Muhammad Hayatullah Khan and others v. Federal Land Commission (PLD 1977 Lahore 166).

6. To resolve the controversy between the parties, reference to para. 29 of the Land Reforms Regulation, 1972 (MLR 115) is relevant, which is reproduced as under:‑‑ "Revisional powers of the Federal Government:‑‑‑ The Federal Government, or any person authorized by it in that behalf, may at any time, of its, or his own motion or otherwise, call for the record of any case or proceedings under this Regulation which is pending or in which a Commission or any other authority appointed under this Regulation other than the Federal Land Commission constituted under paragraph 4‑A, has passed an order, for the purpose of satisfying itself or himself about the correctness, legality or propriety of such an order, and may pass such order in relation thereto as the Federal Government or, as the case may be, such person thinks fit; Provided that the Federal Government may, from time to time, specify the case or class of cases in which it desires to pass final orders; Provided further that no order shall be passed under this paragraph revising or modifying an order affecting any person unless such person has been afforded an opportunity of being heard; Provided further that the record of any case or proceeding in which a Commission or other authority has passed an order shall not be called for under this paragraph by the Federal Government or the person authorized by it:‑‑ (a) of its or his own motion, after the (30th day of November, 1976) or (b) on, the application of any aggrieved person made after the expiration of sixty days from date of such order or from the enactment of the Land Reforms (Amendment) Act, 1973, whichever is later, excluding the time requisite for obtaining a copy of such order."

7. Bare reading of the above said provisions of law reveals that the 3rd proviso to above‑quoted paragraph 29 placed a complete embargo on suo motu exercise of revisional powers by the Federal Government or by a person authorized by it in this behalf after 30‑11‑1976. This position of law was affirmed by the Hon'ble Supreme Court of Pakistan in the case of "The Chairman, Federal Land Commission, Islamabad and another v. Akhtar Abbas" (PLD 1989 SC 550) and in the case of Government of N.‑W.F.P. through Secretary, Forests, Fisheries and Wildlife, Peshawar and others v. Federation of Pakistan and others (1998 SCMR 36) wherein it was held that:‑‑ "A careful reading of the above provision would show that the revisional powers contained in the main paragraph 29 of MLR 115 are not unfettered but are controlled by the three provisos appended to it. Under the first proviso, the Federal Government may specify, the cases or class of cases in respect whereof the power of revisional may be exercised. Under the second proviso the Federal Government or its delegatee cannot modify or revise an order which affects the right of any party unless such party has been given an opportunity of hearing in the case. The third proviso places complete embargo on the exercise of the suo motu revisional power by the Federal Government or by a person authorized by it in this behalf after 30th day of November, 1976."

8. On the question of locus standi of the petitioner, the objection of the learned counsel for the respondents is not entertainable, because the cases of Mahmoona and others v. Ilm Din and 6 others (PLD 1984 Lah. 228) and Muhammad Hayatullah Khan and others v. Federal Land Commission (PLD 1977 Lah. 166) referred by the learned counsel for the petitioner are not applicable in the facts and circumstances of the present case, because in the former case revision petition filed by the declarent was accepted on the basis of lawful order and no land was yet resumed or vested in favour of the Commission under para. 13 and therefore there was no question of the excess land surrendered by the declarent to be utilized under para. 18 of the MLR

115. Similarly in the latter case of Muhammad Hayatullah Khan (supra) the land did not vest in the Government.

9. Here, in the present case, the question of transfer of land by the declarant in favour of his brother Muhammad Nasim Khan by way of Mutation No. 56, dated 23‑8‑1969 has finally been adjusted on 24‑10‑1973 by the order of the Additional Chief Land Commissioner and the review petition was dismissed by the order dated 26‑3‑1976 declaring the transfer as void and thereafter the order passed in suo motu revisional jurisdiction dated 5‑5‑1990 is not legally sustainable.

10. As far as the objection of the learned counsel for the respondents that the petition is hit by laches is concerned, the same is also rejected. We have noted that the Federal Land Commission had no lawful authority under para 29 of the Land Reforms Regulation, 1972 (MLR 115) to pass the impugned order dated 5‑5‑1990. The impugned order was wholly void and coram non judice and has been passed on the back of the petitioner without issuing any notice. Resultantly, this petition is accepted with costs, and the impugned order dated 5‑5‑1990 is declared to be without lawful authority and of no legal effect: H.B.T./M‑33/L Petition accepted.