1997 PLP 329 (CLC)

‑‑‑‑Para. 18‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Grantee of rights under para.18, Land Reforms Regulation, 1972 allegedly sold land in question to the petitioner‑‑‑Respondent subsequently moved application before Deputy Land Commissioner for cancellation of mutation of sale on the ground that he being tenant of land in question which was granted to him under para.18, Land Reforms Regulation, 1972, could not sell to petitioner for a period of 25 years and he had in fact not sold the same to petitioner‑‑‑Commissioner in his revisional jurisdiction ordered cancellation of relevant mutation‑‑‑Validity‑‑‑Restrictions imposed on grant of land to tenants under para. 18, Land Reforms Regulation, 1972, to the effect that no mutation of sale etc. could be entered/sanctioned within period of 25 years from the date of grant which was to expire on 25‑7‑1999‑‑‑Such restriction was absolutely effective on 25‑2‑1983, when mutation of sale was attested by Revenue Officer‑‑‑Order of Commissioner whereby he ordered cancellation of mutation of sale in question, thus, did not suffer from any illegality or lack of jurisdiction so as .to warrant interference by the High Court in exercise of its Constitutional jurisdiction. Chena v. Shabbir Ahmad and another 1993 SCMR 705; Ali Muhammad and others v. Chief Settlement and Rehabilitation Commissioner and others 1984 SCMR 94 and Umar Din and another v. Mst. Sharifan and another PLD 1995 SC 686 ref. Malik Dost Muhammad Awan, Advocate. The facts leading to the institution of the present writ petition are that an area admeasuring 72 Kanals 6 Marlas situated in Mauza Jamal Din Wali District Rahim Yar Khan was granted on 26‑7‑1974 to Rasool Bakhsh respondent No.3 under Land Reforms Ordinance, 1972/MLR‑115 and were given effect to in the Revenue Records vide Mutation No. 345 which was attested by Revenue Officer on 22‑2‑1979. Respondent No.3 allegedly sold out the said land to petitioner No. l and mutation of oral sale No.436 was entered on 24‑2‑1983 and was attested on 26‑8‑1992. Petitioner No. 1, gifted away 242 Kanals 17 Marlas of land, inclusive of land in dispute to respondent No.2. mutation No.528 of oral gift was attested in favour of respondent No.2 on 12‑8‑1986.

2. Respondent No.3 made an application to Deputy Land Commissioner, Rahimyar Khan for cancellation of Mutations Nos.436 and 528 on 1‑3‑1992 on the ground that he was a tenant of the disputed land which was granted to him under MLR 115 which had allegedly been sold to Syed Mehmood Hussain Shah, petitioner No. l on the basis of Mutation No.436. He denied the alleged sale of disputed land to Mehmood Hussain Shah. He had further alleged that Mutations Nos.436 and 528 aforementioned were against the provisions of MLR 115, Land Reforms Regulation, 1972. As a grantee of rights under Paragraph No.18 of Land Reforms Regulation. 1972 he could not alienate/transfer or part with the possession of the said land within a period of ?5 years and that Mutation No.436 was fictitious, forged and was liable to be cancelled.

3. The respondents were summoned and the Deputy Land Commissioner, Rahimyar Khan dismissed the application on 2‑5‑1995 on the ground that the same was barred by many years and that the allegation of fraud having been made the same could only be determined by a detailed inquiry in Civil Court. The Commissioner vide impugned order dated 31‑12‑1995 accepted the revision petition and ordered the cancellation of Mutations Nos.436 and 528 of the estate of Mauza Jamal Din Wali as, according to order the attestation of Mutation No.436 violated the instructions/notification issued in this behalf.

4. The learned counsel for the petitioners has submitted that the Commissioner had no jurisdiction to entertain a revision petition after a lapse of more than 12 years and that there was no sufficient reasons for condoning the delay and that it was only the Civil Court which could look into allegation of fraud after recording the evidence of parties. He further alleged that the land having been further transferred vide Mutation No.528, the petitioner had lost the causing if he had any against the attestation of Mutation No.436, and that he was not in possession of the disput9d property. He also placed reliance on Chena v. Shabbir Ahmad and another (1993 SCMR 705), Ali Muhammad and others v. Chief Settlement and Rehabilitation Commissioner and others (1984 SCMR 94) and Umar Din and another v. Mst. Sharifan and another (PLD 1995 SC 686).

5. The case of Chena v. Shabbir Ahmad related to pre‑emption and it was in that context that the Hon'ble Supreme Court held that "the grantee of land under para. 18 of the Land Reforms Regulation, 1972/MLR 115 was at par with the other owners of the estate, the latter could claim no preferential right. It was a case where the tenant who was granted land under para. 18 of the Land Reforms Regulation, 1972 was defendant in a suit for pre‑emption and the Courts below had held that he was not an owner in the estate at par with the pre?emptor and, therefore, he could not claim preferential right. The judgment in this case rather goes against the petitioner and the following part of paragraph 4 is important:‑‑ "...No doubt, it is subject to certain conditions like non‑alienation, proper cultivation etc. and for non‑observance liable to resumption, yet these are like restrictive covenants', as a plot of land given in a residential area not to be used for commercial purposes etc. " The restriction imposed on a tenant, granted proprietary rights under Paragraph 18 of Land Reforms Regulation, 1972, were recognised in express words. Umar Din's case related to inheritance and to application of sections 20, 21 and 30 of Colonization of Government Lands (Punjab) Act (V) of 1912. It had no application in any manner to the facts of the present case. Ali Muhammad 's case referred supra also did not help the petitioner. It was a case where application of section 3 of Pakistan Administration Evacuee Property Act (XII) of 1957 and section 54 of the Transfer of Property Act (IV) of 1982 were discussed.

6. Coming to the legality of the impugned order of the Commissioner, no illegality or lack of jurisdiction has been pointed out by the learned counsel for the petitioner. Vide Notification dated 23‑10‑1972 there was an express limitation imposed on grantee (respondent No.3) in the following words:‑‑ "(a) shall not alienate by sale, gift, mortgage or otherwise the grant, or any portion of the grant during a period of 25 years from the date of the grant, provided that for the purpose of obtaining a loan for the development of the land the grantee mortgage it in favour of:‑‑ (i) the Provincial Government; (ii) any Government sponsored institution; or (iii) a Cooperative Society." There are other restrictions but are not relevant to the present case. 7. the restrictions as imposed on such grant under para. 18 of the Land Reforms Regulation are absolute. No mutation of sale etc. could be entered/sanctioned within a period of 25 years from the date of grant be taken into consideration for computing the period of twenty‑five years it would expire only on 25‑7‑1999 and the restrictions imposed vide instructions referred supra were absolutely effective on 18‑2‑1983 when report in the Roznamcha of Patwari was entered and also on 25‑2‑1983, the date on which Mutation No.436 of the estate was attested by the Revenue Officer. The impugned orders of the Commissioner do not suffer from any illegality or lack of jurisdiction and, therefore, the writ petition is dismissed in limine. A. A./H‑2/L???????????????????????????????????????????????????? ??????????????????????????????????? ??????????? Petition dismissed.