1994 PLP 2254 (MLD)

Mst. Baggi, respondent No.17 in this writ petition, was owner of land measuring 249 Kanals 16 Marlas situate in the revenue estate of Village Kot Kahan, Tehsil and District Rawalpindi. On 3-12-1970, Muhammad Anwar son of Ghulam Muhammad who was the general attorney of Mst. Baggi referred to above, appeared before the Patwari Halqa and made a statement that Mst Baggi has sold her entire land alongwith the share in Shamlat in favour' of Sardar Muhammad Ishaq petitioner and Muhammad Ramzan, the respondent No.5, for a consideration of 20,

000. This statement was recorded in Register Roznamcha Waqiati, copy whereof has been placed on record as Annexure 'B' at page 27-H of the petition. Simultaneously, on the basis of the statement of the said attorney mutation of sale No.226 was entered, reflecting the sale of entire holding of Mst. Baggi including the share in Shamlat Deh. Entries made in the mutation were checked by the Patwari Halqa, who made a report thereon that the vendor is selling his entire land alongwith the share in the Shamlat and further that the purchasers are not the owners in the estate. The mutation referred to above was sanctioned on 11-12-1970. It may be mentioned here that although total area of the agricultural land held in the estate by Mst. Baggi was 249 Kanals 16 Marlas, but while reflecting the land owned by Mst. Baggi in the mutation referred to above, land measuring 235 Kanals and 4 Marlas has been described as the subject-matter thereof, land measuring 14 Kanals 12 Marlas bearing Khasras Nos. 244 and 859 is committed to be mentioned in the said mutation, although as per statement of the attorney as verified by Patwari Halqa, her entire land in the estate had been sold. Mutation 226 referred to above was incorporated in the Jamabandi for the year 1970-71 and for the period thereafter. Muhammad Ramzan respondent No.5 gifted his 2/3rd share in the land mentioned above in favour of respondent No.6 vide Mutation No.269 sanctioned on 21-1-1974, who subsequently sold land measuring 33 Kanals 1 Marla in favour of Muhammad Zaman predecessor-in?interest of respondents 7 to 16 vide registered sale-deed dated 19-8-1975 on the basis whereof, Mutation No.284 was sanctioned on 17-1-1976. In the year 1982 consolidation proceedings were held in the village. Consolidation Scheme was confirmed on 27-6-1984 on the basis whereof agricultural land was allotted to the petitioner and his co-vendees in accordance with their entitlement. Against the allotment of the land to the petitioner respondents Nos.3 and 4 filed a time-barred appeal before the Collector (Consolidation), which was dismissed vide order dated 15-7-1987. They filed revision petitions before the Additional Commissioner (Consolidation) as well as the Member, Board of Revenue which were dismissed vide orders, dated 30-4-1988 and 12-11-1991, respectively. Therefore the dispute stood finalised on the consolidation side.

2. Vide mutation of exchange No.604 sanctioned on 2-9-1987, Muhammad Aslam and Muhammad Muslim respondents Nos.3 and 4 got land measuring 14 Kanals 12 Marlas bearing Khasras Nos.244 and 858 mentioned above in exchange of land measuring 12 Marlas. Thereafter, Muhammad Muslim respondent No.4 filed an application before the Additional Commissioner (Revenue), Rawalpindi, seeking cancellation of Mutation No.226 sanctioned on 11-12-1970 and subsequent Mutations Nos. 269 and 284 on the ground that the original sale was violative of paragraph No.25(5) of the Martial Law Regulation and paragraph No.24 of the Martial Law Regulation 60.10 as the total holding was not sold by Mst. Baggi in favour of non-owner vendees therefore, the mutations in question are void and are held to be cancelled. On this application, statement of the Patwari Halqa was obtained by the learned Additional Commissioner who stated in writing that in fact Mst. Baggy had sold her entire land which was owned by her and tint omission of two Khasras numbers in the original mutation of sale was just an inadvertent aristake. This application was contested and was dismissed by the learned Additional Commissioner vide order, dated 25-1-1989 on the ground that the applicant is not an aggrieved person nor has any locus standi to move this application which is also frivolous in nature. Aggrieved of this order, respondent No.4 filed a revision petition before Member, Board of Revenue, who vide order, dated 28-10-1992 accepted the same and has directed cancellation of mutations referred to above as being violative of the provisions of MLR No.115. This order has been challenged through this Constitutional petition.

3. Mirza Muhammad Anwar Baig, Advocate and Muhammad Younas Bhatti, Advocate have appeared on behalf of the petitioner, whereas Mr. Fayyaz Ahmad Khawaja, Advocate has appeared on behalf of the contesting respondents Nos.3 and 4, Syed Sajjad Hussain, Advocate has appeared for respondents Nos.1 and 2, Mr. Muhammad Arshad Tabrez, Advocate has appeared on behalf of respondents Nos.7 to 16, Mirza Muhammad Iftikhar, Advocate has appeared for respondents Nos.18 and

19. None has appeared on behalf of respondents Nos. 5 and 6, who are ex parte.

4. Learned counsel for the petitioner has contended that findings of Member, Board of Revenue to the effect that the petitioner and his co-vendee did not purchase entire holding of the vendor is incorrect and is based upon omission to read Report Roznamcha Waqiati and the entries of the mutations in question; that respondent No.4 has absolutely no locus standi to file an application as, he is not an aggrieved person and that after repeal of MLR 64, learned Member, Board of Revenue has absolutely no jurisdiction to set aside the mutations in question on the ground that the same have been sanctioned in violation of the provisions of the MLRs referred to above. In support of his contention, learned counsel has placed reliance on the following cases:

"(1) Anwar Ahmad and another v. Saifullah and 11 others PLD 1984 Rev. 30; (2) Saifuddin and another v. Member, Federal Land Commission and 19 others 1984 CLC 737; (3) Fateh Muhammad and others v. Aisha Bibi and others 1990 CLC 1996; (4)? Ghulamh Muhammad alias Ghulamoon v. Maula Dad and 6 others 1980 SCMR 314 (5) Sadiq All v. Taj Din and others PLD 1992 Lah. 158; (6) Khuda Bakhsh and another v. Mst. Iqbal Bibi and another 1991 CLC 219."

5. As against the above arguments, Mr. Muhammad Fayyaz Ahmad Khawaja, Advocate learned counsel for respondents Nos.3 and 4 has contended that the petitioner cannot be allowed to raise the argument at the time of final hearing of this writ petition that the petitioner and his co-vendee had purchased the entire holding of Mst. Baggi as in paragraph No.1 of the writ petition it has been specifically mentioned that the land purchased by them was 235 Kanals 4 Marlas; that the Constitutional petition involves controversial question of facts, therefore, the writ petition is not competent, that no writ lies against the orders passed by the revenue authorities which are relatable to the correction of entries in the Revenue Record, hence the only course open to the petitioner is to file a civil suit, that the respondent No.4 had the locus standi to file the application and that the impugned order has been passed with jurisdiction. In support of his case, learned counsel has placed reliance on the following cases:

(1) Amir Abdullah Khan Rokhari v. Federal Land Commission 1992 CLC 1919; (2) Mst. Hajiani and others v. West Pakistan Land Commission, Lahore and others PLD 1966 SC 114; (3) Muhammad Baran and others v. Member (Settlement and Rehabilitation), Board of Revenue, Punjab and others PLD 1991 SC

691. Other learned counsel for remaining respondents have not addressed any arguments in spite of opportunity given to them.

6. Before embarking upon the discussion and decision of the issue, raised in this Constitution petition, it will be advantageous to have a brief survey of the law on the point, which as follows:

In case of Anwar Ahmad and another v. Saifullah and 11 others PLD 1984 Rev. 30 it has been held that in those cases where parties have exchanged their entire holdings and are in possession thereof since long, if due to oversight a few Kanals of the land owned by one party was not handed over to the other, it will not render the transaction of exchange as void and logical course to follow in such eventuality will be to hand Tier such few Kanals to the person who is entitled thereto as the said course would be in accordance with letter and spirit of deed of exchange. In case of Saifuddin and another v. Member, Federal Land commission and 19 others 1984 CLC 737 it has been held that under the West Pakistan Land Reforms Regulation, 1959 or Land Reforms Regulation, 1972, no forum has been provided to entertain an application by a private person for purpose of examining whether an alienation is violative of MLR. Even Land commission also cannot entertain such an application. It has further been held in this judgment that order of Deputy Land Commissioner passed on alienor's application for the purpose of declaring that alienation made by them is violative of the Land Reforms Regulations is illegal hence, is not entertainable as a person who himself has infringed the provision or MLR cannot challenge the alienation as being violative of MLR. In case of Fateh Muhammad and others v. Aisha Bibi and others 1990 CLC 1996 it has been held that in case of disposal of agricultural land by the vendor, a son, after lapse of fourteen years has no locus standi to file an application for review of the mutation of sale on the ground that 10 Marlas of land out of the holding of the alienor was not sold, hence, the same is void being violative of MLR. In this case order passed by the Additional Commissioner reviewing the mutation as being violative of MLR was set aside in revision by the learned Member, Board of Revenue. In case of Ghulam Muhammad alias Ghulamoon v. Maula Dad and 6 others 1980 SCMR 314 it had been held that, where transaction of sale was challenged by the vendor on the ground that the same was violative of paragraph 25 of the Land Reforms Regulation, 1959, MLR 64 of 1959 and section 19 of the Colonization of Government Lands (Punjab) Act (V of 1912), he cannot be allowed to agitate the contention. In the last paragraph of this judgment it has been held as under:

"Learned counsel for the petitioner has reiterated both the points which prevailed with the learned trial Court. We agree with the learned Judge of the High Court that due to the agreement, wherein the petitioner had undertaken to do all that was necessary for formally completing the sale and having parted with the possession after receiving the consideration, he could not reply on either of para. 25 of MLR 64 of 1959 or on section 19 of the Colonization of Government Lands (Punjab) Act (V of 1912) so as to non-Provincial Government did not contest the suit nor any other functionary of the declaration sought in the suit. In the circumstances of the case we do not consider it fit case, on account of the conduct of the petitioner himself, to grant special leave. This petition is accordingly dismissed." In case of Sadiq Ali v. Taj Din and others PLD 1992 Lah 158, it has been held that jurisdiction to determine questions as to whether the sale transaction in question is against the provision of para. 25 of Land Reforms Regulation, 1959, was the one falling within the exclusive functions of the Land Commission or the Chief Land Commissioner and no other authority including Civil Court and could go into that question. It has further been held that Revenue Authorities had also no concern with the determination of the validi or otherwise of the sale transaction the context of para. 25 of the said Regulation. In this case orders in this respect passed by Civil Court, Appellate Court, as also by the Revenue Authorities, right up to the level of Board of Revenue were held to be without jurisdiction and were set aside in exercise of revisional jurisdiction of the High Court. In case of Khuda Bakhsh and another v. Mst. Iqbal Bibi and another 1991 CLC 219 it has been held that after repeal of MLR 64 no proceeding can be entertained thereunder. In case of Amir Abdullah Khan Rokhari v. Federal Land Commission 1992 CLC 1919 it has been held that after repeal of MLR 64, no fresh proceedings can be admitted and it is only the pending proceedings which are saved. In case of Mst. Hajiani and others v. West Pakistan Land Commission, Lahore and others PLD 1966 SC 114 it has been held that power to take final decision in respect of fresh dispute relatable to the provision of MLR 64 exclusively vests in the Land Commission. In case of Muhammad Baran and others v. Member (Settlement and Rehabilitation), Board of Revenue, Punjab and others PLD 1991 SC 691 it has been held that where the allotment made by the settlement authorities is based upon fraud and forgery and has been set aside by the M.B.R. High Court in its discretionary jurisdiction is not bound to set aside the order passed by the M.B.R., as no party has suffered injustice on account of the passing of the said order. In case of Kaloo v. Member-II, Board of Revenue, Balochistan, Quetta and others 1992 SCMR 2233, it has been held that where the Revenue Authorities are not implementing the decree of the Civil Court, the Constitutional petition does lie in the High Court to get the entries of the Revenue Record corrected by the Revenue Authorities in accordance with the decree of the Civil Court. Following are the legal principles, which appear to have been laid down in the aforementioned judgments: (i)? that after repeal of MLR-64, no proceedings thereunder are entertainable; (ii) that the revenue authorities in exercise of the powers under revenue laws have no jurisdiction to cancel mutation of sale duly sanctioned at j the relevant time on the ground that the said mutations are violative of the provisions of MLR and Land Reforms Regulations, 1972; (iii) that a party to the transaction and a stranger thereto have no locus standi to challenge the legality of alienation and mutation sanctioned at on the basis thereof on the ground that the said transactions/mutation is violative of the provision of MLR referred to above; (iv) that ordinarily a writ petition is not competent to challenge the orders passed by the Revenue Authorities which are relatable to the corrections of revenue entries, yet the orders passed by the Revenue Authorities amount to the extinguishment of title in the property and which have been passed not in pursuant of a suit under the provisions of section 53 of the Land Revenue as being patently illegal and without jurisdiction are liable to be declared as without a lawful) authority in exercise of the Constitutional jurisdiction of the High Court; (v) that even if an order passed by the Courts/forum below is illegal, the High Court is not always bound to set aside the same in case sale order has not caused in justice to the parties.

7. I have considered the arguments addressed by the learned counsel for the parties have gone through the record and have examined the case in the light of the above-referred legal principles. It is admitted fact that respondent No.4 is not original vendee. Mst. Baggi has not challenged the legality and vires of the transaction in question. It is an established legal proposition that even to challenge a void transaction action is to be taken within limitation. In the case in hand, the mutation in question has been sanctioned in the year 1970 whereas the proceedings for setting aside thereof have been initiated on (sic). When the entries in the mutations in question have been incorporated in the record-of-rights, therefore long-standing entries could not have been rectifying on the basis of a miscellaneous application even if the provisions of land, the Revenue Act were to be applied to the case. It is also a well-established legal proposition as held in cases of "Ghulam Muhammad alias Ghulamoon" and "Saifuddin" (supra), that even a party to a transaction cannot be allowed to challenge the legality thereof as being violative of MLR or Colonization Act, 1912, therefore, even Mst. Baggi respondent could not have challenged the legality of the transaction in question not to speak of a stranger. Findings of the learned Commissioner to the effect that respondent No.4 is not an aggrieved and hence had no locus standi to challenge the transaction in question hence was unexceptionable and has illegally been set aside by the learned Member, Board of Revenue. Provisions of MLR-64 have already been repealed. A perusal of the various provisions of MLR-64 and Land Reforms Regulation, 1972 clearly shows that it is only the Land Reforms Authorities who can set aside an alienation as being violative of MLR and that too in very limited situations not of the type in question. These provisions are for the benefit of the said authorities and not the parties to voluntary transactions. Hence the learned Member, Board of Revenue acting on the revenue side had absolutely no Jurisdiction to declare the sanctioned mutation of sale as void moreso when MLR-64 has already been repealed. The order passed by the learned Member Board of Revenue hence, is illegal and without jurisdiction.

8. As regards the arguments of the learned counsel for the petitioner to the effect that in fact the petitioner and his co-vendee has purchased the whole land left by Mst. Baggi, 'I do not deem it proper to give any adjudication on this issue as the same can only be decided after recording of evidence and if the petitioner is so advised, he may file a title suit before a Court of competent jurisdiction to get the declaration of title or any other relief which may be available to him.

9. As regards the argument of the learned counsel for the respondent that the writ petition is not competent as controversial questions of facts are involved, suffice it to say that I have refrained from deciding factual issues which have arisen in this case and the case is being decided purely on the basis of legal issues, hence, the argument raised by the learned counsel for the respondent is of no adverse legal effect upon the maintainability of this writ petition.

10. As regards the argument of the learned counsel for the respondent that the writ petition is not competent against the impugned orders as it arises out of orders of correction of entries made by the Revenue Authorities, the same is misconceived. It is not merely a case of rectification of the revenue entries but a transaction of sale has been set aside and as question of title, has been decided by the learned Member, Board of Revenue, although he had absolutely no jurisdiction to do so, therefore, this Constitutional petition is competent.

11. Resultantly, I accept this writ petition and declare the impugned order, dated 28-10-1992 passed by the learned Member, Board of Revenue, Lahore, all the consequential orders passed in pursuant thereto, mutations sanctioned/cancelled and actions taken thereunder, as being illegal and without 'lawful authority and set aside the same with costs throughout. A.A./M-1743/L?????????????????????????????????????????????????????????????????????????????????? Petition accepted.