P L D 1996 Lahore 243 (PLP)

I RIAZ HUSSAIN, J.‑‑‑By this judgment we propose to decide, Writ Petitions Nos. 2597/77 and 699/77 filed by declarant Siraj Din and Shamas‑ud Din donee respectively as these have arisen out of the order passed by Member Federal Land Commission dated 7‑7‑1976.

2. Succinctly, the facts of the petitions are that petitioner Siraj Din (now deceased) was an owner of 269 acres I Marla in Chak No.343/EB. Vide Mutation No.93 dated 29‑3‑1971, he donated 159 acres in favour of Ahmad Din and 100 acres in favour of his brother Shamas‑ud‑Din. He filed a declaration under Land Reforms Regulation, 1972 wherein he mentioned the aforesaid mutation. This transaction was scrutinized by the Land Commissioner who declared it void. The, petitioner Siraj Din filed an appeal before the Chief Land Commissioner who ‑held that the gift in favour of respondent No.3 to the extent of 97 acres 1 Marla was valid. Subsequently Federal Land Commission Inspection Team scrutinized the abovementioned transaction and raised the objections that the gift made vide Mutation No.93 dated 29‑34971 was void for the reason that Shamas‑ud‑Din respondent No.3 was not entitled to more than 1/3rd share of the total land, measuring 75 acres, owned by their father Sher Muhammad and as such the transaction exceeding 25 acres in his favour was void. Federal Land Commission, Rawalpindi, on the basis of report' of Inspection Team, in exercise of his suo motu powers under paragraph 29 of ~the Land Reforms Regulation, 1972 initiated the proceedings and vide order dated 7‑7‑1976 declared the aforenoted gift void and held that brother was not a person mentioned in Explanation I to paragraph 7(l)(b) of Land Reforms Regulation, 1972. He further ruled that no Notification under paragraph 4(8) of the same Regulation could be issued which was in conflict with it. As a result of above findings, the Mutation No.93 Was set at naught and the authority below was directed to count the land donated to Ahmad Din in the holding of declarant and then determine his entitlement afresh.

5. Through this Constitutional petition the petitioners have called in question the legality of the aforesaid order dated 7‑7‑1976.

6. Learned counsel for the petitioners submits that the impugned order liable to be set aside on the following grounds:‑‑ "First: Individual Member of the Federal Land Commission could not exercise the powers specificially reserved for and exercisable by the Federal Land Coninfission. Second: the order was against the principle of natural justice that is I audi alterm partem' as the petitioner Shamas‑ud‑Din, petitioner in Writ Petition No.699'of 1977 had been in possession of the land gifted by Siraj Din petitioner and had been given opportunity of hearing. The impugned order, therefore, was coram non judice. Third: the Federal Land Commission did not appreciate the order of Chief Land Commissioner in its correct perspective and set aside that order in a slipshod manner, therefore, his order dated 7‑7‑1976 could not be termed as lawful. Fourth: since petitioner Siraj Din was unmarried respondent No.3 was also his legal heir and, therefore, he could validly gift the land at least to the extent of 97 acres I Marla in his favour. Possession of the land was also transferred to the donee and, therefore, t e gift was legally complete in all respect.

7. Learned A.A.‑G. and Mr. Noor Mustafa KhawaJa, Advocate for the ,and Commission have vehemently defended the impugned order.

8. We have heard the learned counsel at length and perused the record minutely.

19. The first objection is not tenable' in view of law enunciated in Sardar Abdul Ghafoor Khan and 3 others v. The Federal Land Commission, Islamabad PLD 1979 Lahore 375 wherein it was observed:‑‑ "So far as the first legal objection is concerned, it stands disposed of in view of the validation clause introduced by amendment in law effected by Ordinance No.XXIX of 1978. ,

10. Paragraph 29 of the Regulation was considered threadbare by the Honourable Supreme Court, Mst. Tayyaba Khanam and others v. Chairman, Federal Land Commission and others 1984 SCMR 1110 wherein their Lordships observed as follows:‑‑ "The Federal Land Commission, while exercising suo motu powers, under paragraph 29 of M. L. R. 115, had only limited powers to examine the correctness and propriety of the order of the learned Chief Land Commissioner being explicit and detailed on the subject, the limited powers under paragraph 29 could not be exercised in the manner in which these have been so exercised. The wording of paragraph 29 corresponds with the wording of section 435 of Cr.P.C. and the limitation in force thereon would also be applicable to the exercise of powers under paragraph

29. Reliance was placed on Chief Land Commissioner v. Maula Dad 1978 SCMR 264, Abdul Hamid Khan1v Officer on Special Duty, Federal Land Commission 1979 CLC 211, Sain Bux and others v. Officer on Special Duty 1980 CLC 1395~. The dictum of the Supreme Court PLD 1974 SC 13‑9 is only applicable where there has been no ignoring of record or misreading thereof. Moreover, the Land Reforms Regulation No.115 being confiscatory in nature and appropriation without any compensation, the Supreme Court and the High Court, in order to do complete justice, had the jurisdiction and the powers to go into the facts and this is to be done in a far more effective manner. Under the Muslim Law the moment Sardar Hamid Hasan declared his intention of making of gift in favour of his heirs, there could be no further scrutiny. In this behalf reference is made to Ashfaqur Rehman Khan v. Ch. Muhammad Afzal, Mutwalli, Waqf Property and another PLD 1959 Lah. 59, Hayat Muhammad and another v. Member, Federal Land Commission, Rawalpindi and 2 others PLD 1974 Lah. 456, Zulfiqar Ali Khan v. Additional Chief Land Commissioner, Punjab and 2 others PLD 1975 Lah. 158, Sardar Abdul Ghafoor Khan and 3 others v. The Federal Land Commissioner, Islamabad PLD 1979 Lah. 375, Jehan Khan etc. v. Member, Federal Land Commission 1981 CLC 1200. In PLD 1979 Lah. 375 it was held by the learned Judge (Shaflur Rehman, J. as he then was) that "Commissioner or a Member of it had no jurisdiction in law to consider the merits of the transaction made in favour of the heirs during the period prescribed in clause (b), paragraph 7 of the Regulation". Second proviso to paragraph 7(l)(b) reads as follows:‑‑ "Provided further that nothing in this clause (b) of paragraph 7 shall apply to‑‑ (i) any transfer of land or creation of any right or interest in or encumbrance on any land, by way of gift or otherwise, made by a person in favour of his heirs, or ... ... ..... 10‑A. In Munir Ahmad and 2 others v. Chairman, Federal, Land Commission 1994 CLC 20, the scope and content of paragraph 29 ~f the Regulation w also taken into consideration by one of us (Mian Allah Nawaz, J.). After resume of the relevant case‑law, it was observed:‑‑ (i) The Suo Motu power of Federal Land Commission under para. 29 of the Regulation is almost analogous to the revisional power of criminal Courts under section 439 of the Code of Criminal Procedure. The revisional Court, thus, under para.29 of the Regulation is empowered to summon the record. of subordinate authorities for the purpose of satisfying about the correctness/validity of the orders passed by them/actions taken by them/proceedings initiated by them against owners of land. The Federal Land Commission, thus, can set aside the orders/actions 'of the subordinate authorities if it comes to the conclusion that orders/actions suffer from excess of jurisdiction, absence of jurisdiction or are in defiance of some express provision of law. The jurisdiction is amalgam of wide as well as limited power. This proceeds upon the principle of doing ex debitio justice and is not entitled to victimise any one. (ii) The alienations made by way of gifts or transfers made by declarant to his legal heirs persons enumerated in proviso to sub‑para. (b) of para.7 of the Regulation are immune from scrutiny of Land Reforms Authorities. (iii) The Regulation is confiscatory in nature and embodies the principle of expropriation of the property of citizens without payment of compensation. It has, so, to be construed strictly and in favour of the subject.

11. Applying these principles to facts and circumstances of the case in hand it is clear that Shams‑ud‑Din/donee was not a party before the Federal LanG Commission and was condemned unheard. This being the position, the impugned order is in contravention of principles of natural justice and so it cannot be sustained. There is yet another aspect of the case, The learned Federal Land Commission, while passing the impugned order, did not advert to the' propriety/soundness of the decision of the Chief Land Commission. Under, the A law, he was required to examine as to whether the order, impugned before him, suffered from any error of jurisdiction or any legal defect was floating from the record or was based upon misreading and non‑reading of evidence. A perusal of the order of Federal Land Commission would show that no such exercise was done by it. On this state of affair, we have no hesitation in coming to the conclusion that the impugned decision suffers from illegality apparent on the face of record and so in view of rule laid down in Munir Ahmed's case (supra), we cannot uphold the impugned order.

12. Having held so, the only question surviving for examination is as to what relief be granted to the petitioners. Ordinarily, this Court, in exercise of Constitutional jurisdiction, remands a case to the concerned forum if it comes to the conclusion that the order is without jurisdiction or is without any lawful authority. However, this principle is not a rule of thumb and can be departed from in view of the facts and circumstances of the case. In the present case, the relevant provisions of Land Reforms Regulation, 1972 as well as Land Reforms Act, 1977 had been declared contrary to Injunction of Islam by Supreme Court in Qazalbash Waqt and others v. Chief Land Commissioner, Punjab, Lahore and others PLD 1990 SC

99. The review application filed by Government of Punjab was dismissed. These statutes accordingly stand erased from statute book ' In this legal background, it will be just a futile exercise to send the matter back to the Federal Land Commission for re‑examination.

13. As a result of the above discussion, we accept these petitions with grant of the requested I reliefs. Since the points involved in these petitions were wholly legal, we do not like to burden any party with costs ‑ A.A./S‑491 Petition accepted