1994 PLP 1333 (SCMR)

SAJJAD ALI SHAH, J.‑‑‑Abdul Latif Khan owned land in Phulra Estate, which was placed under superintendence of Court of Wards and released vide notification issued in March, 1965. Land Reforms Regulation, 1972 (MLR 115) was applied to the land in question and declaration was sought and it was found that transfers were made in 1969, 1970, 1971 and 1972 which appeared to defeat object of Land Reforms Regulation, 1972. In such circumstances under `paragraph 7 of MLR 115 the case was submitted to the Land Commissioner for final adjudication. Vide order dated 10‑8‑1972, Land Commissioner held that decrees of Civil Court passed before 20‑12‑1971 could not be challenged under MLR

115. Appeal filed by Ghulam Sarwar, son of Khani Zaman was dismissed by the Chief Land Commissioner vide order passed on 5‑9‑1972.

2. Member, Federal Land Commission in exercise of suo motu power of revision under MLR 115 vide his order dated 2‑7‑1977 set aside two orders passed by Land Commissioner and Chief Land Commissioner mentioned in the above paragraph by holding that transactions, which were subject‑matter of decrees, were not bona fide as they were in violation of section 16 of the Punjab Court of Wards Act, 1903. Against the said decision Writ Petitions Nos.253 of 1976 and 503 of 1977 were filed in Peshawar High Court, which were allowed vide judgment dated 26‑11‑1979 and the case was remanded to the Federal Land Commission for fresh decision after hearing the concerned' parties. After remand Senior Member, Federal Land Commission vide order dated 29‑7‑1982 directed Deputy Land Commissioner to re‑determine land holdings of Abdul Latif Khan under MLR 115 and to resume the land in excess as provided under paragraph 8 of the Regulation. In compliance the needful was done and vide order dated 22‑3‑1983 Deputy Land Commissioner, Mansehra resumed land equivalent to 16850 PIUs.

3. Writ Petition No. 49 of 1993 was filed in the High Court by respondents 1 to 14, which has been allowed by judgment dated 13‑11‑1993 and in the result order dated 29‑7‑1982 of Senior Member, Federal Land Commission and subsequent order dated 22‑3‑1983 of Deputy Land Commissioner have been set aside and order dated 5‑9‑1972 of Chief Land Commissioner has been restored. Against this decision of the High Court Mst. Noor Nisa and 14 others have filed Civil Petition No. 80 of 1994 and Federal Land Commission has filed Civil Petition No. 81 of 1994 and in both these petitions are impleaded. Nazir Ahmad Khan Lughmani and 20 others as respondents with legal representatives of some, who have died.

4. Before us it is contended on behalf of the petitioners that decrees were not binding upon Federal Land Commission as they were violative of section 16 of the Punjab Court of Wards Act, 1903 as sanction was not obtained from the Provincial Government and Federal Land Commission is competent to determine the extent of resumption of land of a declarant and in that context if there is any finding of a Civil Court, it is subject to the final decision of the Federal Land Commission. In support of the preposition mentioned above reliance is placed on the case of Sher Zaman v. Muhammad Ishaq and others (PLD 1985 SC 144).

5. It appears from the record that firstly the decrees were consent decrees. Secondly they were passed by the Civil Court before 20‑12‑1971 which is the cut off date mentioned in paragraph 7 of MLR

115. Thirdly these decrees had attained finality as they were not challenged in competent forums as are provided under the law. Fourthly disability under section 16 of the Punjab Court of Wards Act in this case cannot be equated with disability mentioned in the case of Ahmad Nawaz Shah v. Chief Land Commissioner, Punjab (1974 SCMR 448) in which transfer was held void on the ground that a Muslim minor of relevant category could not make a gift as it was not permissible under the Muhammadan Law. In that case transfer was struck down by this Court as void ab initio independent of provisions of MLR

115. Fifthly Federal Land Commission had no jurisdiction to set aside or ignore the decrees of the Civil Courts, which can be set aside and challenged in higher Courts as is provided under the law. In this context reliance by Federal Land Commission on the case of Sher Zaman v. Muhammad Ishaq and others (PLD 1985 SC 144) is misplaced for the reason that ratio of the reported case would apply to situation in which dispute is pending in the Civil Court and it appears that the same could be referred to Land Commission and it is held by this Court that in such circumstances Civil Court has jurisdiction to decide such question but subject to the condition that where Commission is also competent to determine a matter, final decision shall always remain with the Commission. In the instant cast; decrees had already been passed and had attained finality before the matter was noticed by Federal Land Commission.

6. For facts and reasons mentioned above we are unable to find any flaw or legal infirmity in the judgment of the High Court and therefore we refuse leave in both these petitions which are dismissed as without merits. M.B.A./N‑379/S????????????????????????????????????????????????????????????????????????????????? Petitions dismissed.