1985 PLP 312 (SCMR)

MUHAMMAD AFZAL ZULLAH, J.--These appeals through leave of this Court are directed against judgments of the Lahore High Court dated 14-2-1981; 12-4-1981 and 19-4-1981; whereby several writ petitions, were dismissed except for partial relief in W. P. No. 1334 of 1977 out of which Civil Appeal No. 79 of 1983 has arisen. All these appeals relate to the validity of the alienations under paragraph 7 of Land Reforms Regulation, 1972 (M. L. R. 115). A learned Member of Federal Land Commission declared all the alienations involved in these cases as void mainly for the reasons that the sole considerations was inadequate and also not proved to have been paid to the alienors who also happened to be the declarants under the Land Reforms Law. Four declarants and eighteen alienees filed separate writ petitions whereby the orders of the Member, Federal Land Commission were challenged on grounds of lack of revisional jurisdiction as also those of merits. They were all dismissed by the impugned judgments. There are two main judgments--one dated 14-2-1981 which covers all the cases except one (C. A. No. 79/1983) the impugned judgment wherein is, dated 19-4-1981. There is one apparent conflict in the two. Whereas the alienation in favour of a mother has been found as valid in the judgment, dated 19-4-1981 in C. A. No. 79/1983, the same has been held otherwise in judgement, dated 14-2-1981--the Bench hearing all the matters being the same. When the Civil Petitions (out of which these appeals have' arisen) came up for hearing, several other land reforms cases were being heard by this Court including the one from Lahore High Court namely Sardar Ashiq Muhammad Khan Mazari and 3 others. v. Chairman, Federal Land Commission, Islamabad and 4 others P L D 1977 Lah. 461 wherein jurisdictional questions as raised in these cases were involved. Accordingly all the petitions in these cases were converted into appeals and were heard together with the said cases. The judgment in that case has not yet been delivered. There are however some features in the present appeals which render them simple as compared to the others in so far as their disposal is concerned. Notwithstanding the question of jurisdiction involved, the appeals filed by alienees namely C. As. 78 to 99 of 1983 shall in any case fail. The learned Judges held in these cases: "that the vendees are not the persons aggrieved as the proceedings under the Land Reforms Regulation are only for the purpose of ascertaining the holdings of the declarants so as to resume excess land, if any. There is no dispute between the declarants/vendors and the vendees, as none of them disputes the actual fact of the transactions. Consequently so far as they are concerned, the transactions may be effective. Reference be made to Mst. Raj Bibi and 4 others v. Additional Chief Land Commissioner, Punjab Lahore and 2 others P L D 1975 Lah.

408. In this view of the matter, the petitions filed by the vendees may be dismissed for the reason that they are not persons aggrieved." Apart from the question as to whether the vendees are aggrieved persons for purpose of exercise of writ jurisdiction by the High Court it needs to be observed that vis-a-vis the Land Commission Authorities also they do not seem to have suffered any loss in so far as their own interest as distinguished from that of the allenors declarants are concerned. Similar view was expressed in Mst. Karam Illahi v. The State P L D 1974 Rev. Pb.

17. The argument by the alienees/appellants that the alienor when exercising choice might include the area alienated in the surrendered land is of no force. The alienees can, if the transaction is otherwise lawful ands effective resist such an act of the alienor before the Land Commission Authorities so as to compel him to surrender other than the so alienate land. It is for that very reason, it seems, that the alienors have not been impleaded as parties in these cases by the appellants alieness. We in the peculiar circumstances of these cases leave the matter at that without any further comment and dismiss Appeals Nos. 78 and 83 to 99 of 1983 accordingly with no order as to costs. The position in C. As. Nos. 79 to 82 of 1983 is different. That writ petitions were filed by the alienees only without associating the alienees. As found in the cases moved by the alienees, they have a very vital interest in the outcome. Even if it is assumed that as writ petitioners they do not qualify the condition of being aggrieved party, in order to protect their interest recognised by Land Commission Authorities and the High Court it was essential to implead them as respondents. In the circumstances of these cases, dismissal of these appeals on this ground alone would not serve the ends of justice. One alternative is to implead them here in this Court as respondents. The other is to remand the case for this purpose. But these four cases merit to be remanded on other grounds also to the High Court. They briefly stated are as follows: (1) In one case (C. A. No. 79/1983) the alienation in favour of mother has been held to be valid on statutory consideration. The same rule has not been applied in the other three cases. The conflict needs to be resolved vis-a-vis the mother in the other three cases as also other similarly placed females under the relevant provisions of law in all the four cases. (2) The provisions of the Transfer of Property Act read with the Registration Act have been held to be a bar in these cases (C. As 79 to 82 of 1983). The appellants position in this behalf is that their ground was not pressed in service by the learned Member Federal Land Commission in the orders impugned before the High Court and that there was no hearing at all on this question in the High Court. And further if due opportunity had been afforded by the High Court on this question by putting them on notice (that this ground might also be used against them) they would have most certainly defended their position by urging the points taken in the appeals in this Court including the reliance on the law declared in Abdul Karim v. Fazal Muhammad Shah P L D 1967 S C 411. (3) On facts the complaint made is that the learned Member, Federal Land Commission afforded only oral hearing to the appellants. The other lower Land Commission Authorities having held in their favour, they were caught unawares in revisional proceedings while the matters should have been decided in full-fledged, separate trials. Be that as it may, it is also contended, the said learned Member and the learned Judges of the High Court not only misread but also ignored very vital documentary evidence produced by the appellants to show, amongst others, the actual physical transfer of land through sales to the vendees and also; the price structure of the land. (4) And lastly as now held by this Court in Federal Land Commission and others v. Mst. Zarin Qaisha and others 1984 S C M R 666 the treatment by the High Court of the land reforms cases in writ jurisdiction is not to be controlled by mere technicalities; therefore, the question of the genuineness of the sales also ('merited re-consideration in these four cases. In the light of what has been stated above without further discussing the points involved so as to avoid prejudice to any of the parties, we in the interest of justice deem it fit to allow these four appeals (Civil Appeals Nos. 79 to 82 of 1983), remand the cases to the High Court for fresh hearing and decision of the Writ Petitions Nos. 1334/1977 and Nos. 1679 to 1681 of 1977 after impleading the alienees as respondents therein. We order accordingly with the condition that the partial relief granted earlier in W. P. No. 1334 of 1977 shall not be withdrawn during fresh hearing as there is no appeal against that part of the impugned judgment in the said case, by the respondent side. There shall be no order as to costs. Before parting with this judgment it needs to be clarified that the remand order has been necessitated by the requirements of law and justice. This shall not imply that the High Court on account o1 any observation made herein, cannot again dismiss the writ petition: after satisfying the said requirements. It also deeds to be observed that the cases dealt in this judgment somehow or other relate to one main family. It will be open to the High Court to keep this aspect also in mind when examining the question whether there was a deliberate design to evade the law of Land Reforms and if so whether notwith standing the same the alleged transactions fall within the limit; permissible by law. M.Z.M. Order accordingly