2010 PLP 1691 (SCMR)

GHULAM RABBANI, J.

The above appeals with leave of the Court are directed against the Common judgment dated 21-7-2005 passed by a learned Division Bench of Lahore High Court in Writ Petition Nos.772, 1139 of 1998 and 9231 of 2002. Since all these appeals involve common questions of law and facts, the same are disposed of by this single judgment.

2. Leave was granted by common order dated 21-10-2005, to consider, inter alia, whether, after the case of Qazilbash Waqf and others versus Chief Land Commissioner, Punjab, Lahore and others (PLD 1990. SC 99), the Deputy Land Commissioner was empowered to review his earlier order regarding the holding of late Sardar Wali Muhammad and to treat the oral gift in question to be in valid.

3. Relevant facts, precisely stated, are that late Sardar Wali Muhammad, paternal grand father of the respondents Nos. 1 to 9 in C. A. No.1461 of 2005 was a declarant under Land Reform Act No.II of 1977 (hereinafter referred to as "the Act") in respect of holding of agricultural land in 3 districts namely Lahore, Kasur and Sahiwal. It was stated that he had gifted out his land admeasuring 102 acres, 5 kanals and 8 marlas situated in Kasur and Sahiwal in favour of his sons Sardar Hameed Ullah Khan and Sardar Saeed Ullah Khan, now dead, the predecessors-in-interest of the respondents Nos. 1 to 9 in Civil Appeal No.1461 of 2005 and also same respondents in other appeal. The Deputy Land Commissioner had, vide his order dated 18-1-1982, declared that gift to be valid; however, subsequently on pointing out by the Head of team of the Federal Land Commission that the aforesaid gift was not valid, the Land Commissioner, Multan Division vide his order dated 25-6-1989 permitted the Deputy Land Commissioner, Sahiwal to review his previous order dated 18-1-1982. In pursuance of that, the Deputy Land Commissioner, Sahiwal, vide his order dated 25-10-1997 resumed the land equal to 5272 units in favour of Land Commission, therefore, the respondents challenged before Lahore High Court the order dated 25-6-1969 of Land Commissioner, Multan Division and the order dated 25-10-1997 of Deputy Land Commissioner, Sahiwal by way of 2 separate Constitutional Petitions bearing Nos. 772 and 1139 of 1998.

4. Appellants Muhammad Afzal and Abdul Wadood appellants in Civil Appeals Nos.1463 to 1465 of 2005 claiming to be in possession of some of the portion of the disputed land also filed a separate Writ Petition No.9231 of 2002. They sought, amongst others, a direction to the Member Board of Revenue, Colonies, Punjab, that the disputed land being under their and others' possession be declared as Katchi Abadi as per Urban Katchi Abadi Act, 1977; that all of them are eligible for proprietary rights and that the order dated 25-10-1997 passed by the Deputy Land Commissioner, whereby, the land under the said order stood resumed in favour of Land Commission, was passed in continuation of the proceedings of the Federal Land Commission.

5. The Writ Petition Nos. 772 and 1139 of 1998 of above respondents were allowed whereas Writ Petition No. 9231 of 2002 filed by above named appellants was dismissed vide judgment, impugned herein.

6. We have heard learned counsel appearing for the parties and with their assistance we have gone through the material made available before us. The precise point which fall for our decision is whether the Deputy Land Commissioner was legally empowered to have reviewed his earlier order dated 18-1-1982 whereby the gift made by late Sardar Wali `Muhammad in favour of his sons late Sardar Hameed Ullah and Sardar Saeed Ullah predecessor-in-interest of respondent Nos. 1 to 9 in Civil Appeal No. 1461 of 2005 was declared to be valid. Learned Assistant Advocate General, stated in his arguments that the Deputy Land Commissioner, Sahiwal, had exercised powers of review on permission accorded by the Land Commissioner, Multan Division who was empowered to give such permission. In this behalf, he sought support of letter No.I.R-1-101/89 dated 25-6-1989, which read that "Under rule 13(3) of the Punjab Land Reforms Act, II, 1977, the Land Commissioner, Multan Division, has been pleased to grant permission to review the order dated 18-1-1982 passed by the Deputy Land Commissioner, Sahiwal". He stressed that on such authorization the order dated 25-10-1997 was perfectly right, therefore, sustainable in the eyes of law. Learned counsel appearing for legal heirs of respondent No.10 stated that the actual fact was that there was no gift in question and that respondent No.10 Begum Asif Munir in C.A.No.1461 of 2005 being daughter and one of the legal heirs of late Sardar Wali Muhammad was entitled to her share in his lands. He disclosed that in that behalf respondent No.10 had also instituted a suit which is now pending decision. He supported the order dated 25-10-1997 passed by the Deputy Land Commissioner.

7. While learned counsel for other respondents namely descendents of donees stated that Land Commissioner had no power to accord permission to the Deputy Land Commissioner to review his earlier order either under Rule 13(3) of the Punjab Land Reforms Rules, 1917, (to be referred to as "the Rules") or Land Reforms Act; rather this power lay with the Federal Government within terms of section 24 of the Act to be read with Rule 12 of the Rules.

8. Learned counsel for appellants in C.A.Nos.1463 to 1465 of 2005 supported the arguments of Assistant Advocate General and stated further that the impugned judgment be set aside and the prayers in their Writ Petition No.9231 of 2002 be granted.

9. We have gone through section 24 of the Act and rules 12 and 13 of the Rules, 1977 which are reproduced herein below: Act of 1977

24. Power to review.-A Commission shall review a case or a class of cases decided by it before or after the commencement of this Act, if so directed by the Federal Government. Rules of 1977

12. Review.- (1) Except in a case or class of cases where direction for review under S.24 of the Act is received from the Federal Government or where it is necessary to correct an arithmetic or clerical mistake or an accidental slip or omission apparent on the face of record in his own order, no officer of the Commission shall exercise the power of review. (2) An order shall not be modified or reversed on review under sub-rule (1) unless a reasonable notice has been given to the parties affected thereby to appear and be heard; (3) No appeal shall lie against an order passed on review.

13. Revision.-The Chief Land Commissioner, may, at any time of his own motion or an application made to him in that behalf within twenty days from the date of the impugned order call for the record of any case or proceeding under the Act which is pending before any officer or in which an officer has made any order, for the purpose of satisfying himself about the correctness, legality or propriety of any such order and may make such fresh order in relation thereto as he thinks fit, or transfer the same for final disposal under rule 5 to such other officer as he may deem fit. ??????????? (2)

? (3) A Land Commissioner may, at any time of his own motion or on an application made to him in that behalf, within twenty days of the making of an order, call for the record of any case or proceeding under the Act in which a Deputy Land Commissioner, Assistant Land Commissioner or a Sub-Assistant Land Commissioner, under his jurisdiction has made an order, for the purpose of satisfying himself about the correctness, legality or propriety of such an order and may make such order in relation thereto as he thinks fit.

10. Reading of section 24 of the Act, reveals that it is only a Commission which can review a case or a class of cases decided by it before or after commencement of the Act, if so, when directed by the Federal Government; whereas Rule 12 of the Rules, reproduced above, reflects that no officer of the Commission shall exercise the powers of review except in case or class of cases where direction for review under section 24 of the Act is received from the Federal Government or where it is necessary to correct an arithmetic or clerical mistake or an accidental slip or omission apparent on the face of the record in his own order. It is not the case of any party that the Federal Government had authorized the Commission to review the case of gift in question nor it is the case before us that the Deputy Land Commissioner, Sahiwal, by passing order dated 25-10-1997 had only corrected arithmetic or clerical mistake or an accidental slip or omission apparent on the face of record; rather, he had resumed the land in unequivocal terms, which decision is, ex-facie, going in contrast to what he had decided earlier declaring the gift valid.

11. Sub-rule 3 of the Rule 13, too, does not show that a Land Commissioner while exercising his powers thereunder could accord permission to the Deputy Land Commissioner to review his orders.

12. Coming to the letter dated 25-6-1989 of the Land Commissioner, relevant contents whereof are reproduced in para. 6 supra showing the words and figures "Rule 13(3) of the Punjab Land Reforms Act, II, 1977", it may be stated that-we have also gone through section 13(3) of the Act, ibid and find that the said provision is altogether in different context and has no nexus with conferring of power of review. It rather relates to the rights and liabilities of a person owing or possessing a share in shamlat.

13. Thus, considering the point in issue, in the light of above provision of law, we were of the considered opinion that order dated 25-10-1997 was not tenable in the eyes of law. A Division Bench of Lahore High Court had, therefore, rightly allowed the petitions of the respondents and dismissed Writ Petition No.9231 of 2002 under the impugned judgment. By our short order dated 8-6-2010, we had, therefore, dismissed the above appeals leaving the parties to bear their own costs. These are the reasons for the same. S.A.K./C-7/SC??????????????????????????????????????????????????????????????????????????????????? Appeals dismissed.