1988 PLP 165 (CLC)

Mirza Manzoor Ahmad for Respondents No. 4 to

7. Date of hearing: 17th October, 1987. In this constitutional petition the petitioners have challenged the legality of order dated 29‑12‑1985, 17‑3‑1986 and 26‑4‑1986 passed by respondents Nos.l to 3

2. The facts giving rise to this writ petition in brief are that one Noor Ahmad Shah deceased, the father of the petitioners owned land measuring 680 kanals 4 marlas, situated in Mauza Khanewal Kuhna Tehsil Kabirwala District Khanewal. Out of this land he sold land measuring 280 kanals from time to time through different mutations to different persons and thus was left with land measuring 400 kanals 4 marlas which was 4 marlas above the economic holding as defined in Martial Law Regulation No.115. Out of the said land Noor Ahmad Shah deceased through mutation No.91 sanctioned on 30‑1‑1980 gifted land measuring 10 kanals 2 marlas to petitioners No.l to 6 which had the result of reducing his holding to less than the economic holding. Therefter through mutation No.105 sanctioned on 8‑3‑1980 he sold an area of 8 kanals to respondent No.4 and he further sold land measuring 40 kanals to respondents Nos. 6 and 7 for which mutation No.106 was sanctioned on the same day i.e. 8‑3‑1980 and he further sold an area of 60 kanals to respondent No.5 through mutation No‑135 sanctioned on 28‑11‑1980. Noor Ahmad Shah deceased made an application before the District Collector that the said mutations Nos.105, 106 and 135 were void being violative of provisions of MLR.115 as he could not alienate any part of his land which had the effect of reducing his holdings below economic holding. This application was dismissed by the District Collector by his order dated 18‑11‑1982. Noor Ahmad Shah deceased did not take the matter any further and kept silent as he filed no further appeal or revision before higher forums. Subsequently at the start of consolidation operations in the village the Additional Deputy Commissioner (Cons) in exercise of his suo motu powers of review, passed an order on 28‑1‑1984 far review of the said mutations Nos. 105, 106 and 135, treating them as void and the field staff was directed to incorporate the same in the revenue record. Respondents Nos. 4 to 7 feeling aggrieved filed appeal before the Additional Commissioner (Rev) against the said order. During the pendency of this appeal Noor Ahmad Shah died on 16‑9‑1984, therefore, his legal representatives prosecuted the case. The learned Additional Commissioner by order dated 29‑1‑1985 accepted the appeal and remanded the case to the Collector, Multan, to decide the same afresh holding that the impugned order was passed behind the back of respondents Nos. 4 to 7 without any notice to them and a direction was also given to consider the effect of Noor Ahmad Shah having filed no appeal against the order dated 18‑11‑1982 passed by the District Collector, on his application as noted above. After the remand of the case, the Collector by order dated 29‑12‑1985 refused to review the said mutations against which order the petitioners filed appeal before the Additional Commissioner (Revenue) which was dismissed on 17‑3‑1986. The petitioners agitated against the said order by filing revision petition before the learned Member, Board of Revenue which was also dismissed by his order dated 26‑4‑1986. These orders have been challenged in this writ petition.

3. Learned counsel for the petitioners argued that all the alienations including alienation by way of gift made by Noor Ahmad Shah deceased was hit by Para 24 of MLR. 115 which provides that any alienation which had the effect of reducing the holding of a person to less than the economic holding shall be treated as void to that extent, therefore, all the said alienations were void ab initio and non‑existent and it did not make much difference even if Noor Ahmad Shah did not file any appeal against the order of Collector dated 18‑11‑1982 by which his application to get the said mutations of sales set aside which order could not have the effect of making the alienations valid which continued to be void having been so declared by MLR.115 itself, as such they did not affect the ownership rights of Noor Ahmad Shah deceased and as a consequence therefore the petitioners would succeed to the land in question as his heirs.

4. On the other hand learned counsel for respondents Nos.4 to 7 argued that alienation of land made through mutation No.91 sanctioned on 30‑1‑1980 by way of gift was in favour of petitioners Nos.l to 6, therefore, they being the beneficiaries thereunder could not object to the legality of the same and as such they were not entitled to the grant of any relief in exercise of jurisdiction by this Court under Article 199 of the Constitution and exercise of discretion in favour of the petitioners should be refused. Learned counsel for the said respondents further argued that if the relief is refused to the petitioners regarding alienation of land through gift in their favour and the said alienation remains intact, then it automatically follows that the remaining land with Noor Ahmad Shah would be treated to be less than the economic holding and above the subsistence holding and as such the legality of alienations by way of sales evidenced by mutation Nos. 105.106 and 135 should be viewed; from the angle as to whether it contravenes any of provision of MLR 115 relating to alienations of land by a person from his subsistence holding and if that criteria is applied the said alienations through sales are not hit by such provision of law.

5. I have considered the arguments advanced from both the sides. The short question calling for determination is whether the sale evidenced by mutations Nos. 105, 106 and 135 afore‑mentioned were void on the ground of being violative of Paragraph 24 of MLR. 115?

6. In order that the matter may be viewed in correct perspective, it is necessary to recall that prior to the attestation of aforesaid mutations, Noor Ahmad Shah deceased had made a gift of land measuring 10 kanals 2 marlas to petitioners Nos.l to 6 out of land measuring 400 kanals 4 marlas which was owned by him, vide mutation No.91, sanctioned on 30‑1‑1980. Although by reason of this gift his remaining land fell below the economic holding, if was nevertheless not hit by the prohibitive provision, of Para.

24. This was because the land was gifted for residential purpose i.e. for building thereon as mentioned in the order dated 18‑11‑1982 of District Collector (Annex: 'C'), and. a transfer of land for building purposes was excluded from the application of para. 24 by virtue of sub‑para (6) thereof. In this connection it may pertinently be observed that Para. 24 deals with bar against transfer and according to sub‑para. (5) thereof any alienation made in contravention of the provisions of the said para as rendered void. Sub‑para (6) of Para.24 creates an exception by providing that nothing in this paragraph shall apply to:‑‑ (a) Land, whether cultivable or other, which is bona fide required for the purpose of building thereon, and any tenant in possession of such land who refuses to quit after notice may be evicted under the orders of the Deputy Commissioner. Thus, according to law transfer covered by sub‑para (6) has not been treated as void by law. Consequently a transfer of land which has been made by way of gift in the instant case through mutation. No.91 sanctioned on 30‑1‑1980 in favour of petitioners Nos.l to 6 for' the purposes of building thereon which is covered by sub‑para (6) cannot be treated as void. Needless to observe that it is understood, that requirement of land for building thereon mentioned in sub‑para (6) in the nature of things will be of the transferee, as a different view will render the said provision meaningless because the requirement for building thereon mentioned in the said sub‑para cannot in the nature of things be made referable to the requirement of transferor especially as in that case no transfer of land would be involved.

7. As a result of the said gift the land remaining with Noor Ahmad Shah deceased came to 390 Kanals 2 marlas which was covered I by the definition of the subsistence holding as given in MLR.

115. It was out of this land that the sales evidenced by mutations Nos.105, 106 and 135 were made from time to time and it is in this context that the validity or otherwise of the said sales has to be judged. It may be observed that for the purposes of determination of validity or otherwise of sale under Para.24 in a given case, the relevant date with reference to which the holding of the transferor is to be considered is the date of transfer. Taking it to be so in the present case the holding of Noor Ahmad Shah did not fall below a subsistence holding by reason of any one of the sales evidenced by mutations Nos. 105, 106 and

135. That being so none of the said sales were hit by prohibitory provision of Para.

24. Consequently the said sales cannot be held as void and the mutations pertaining thereto bearing No.105, 106 and 135 are unexceptionable. This is what was practically said in the order dated 18‑11‑1982 (Annex: 'C') of the District Collector which has held the field unchallenged. It is too late in the day to re‑open the matter. The controversy raised in the writ petition suffers from laches also.

8. In the result the writ petition fails and it is hereby dismissed with costs. A . A . / S‑133 / L Petition dismissed.