1980 PLP 1358 (CLC)

ZAFFAR HUSAIN MIRZA, J.-Between 1st .March, 19.17 and 11th February, 1967, the petitioner acquired by 14 transactions a total area of 196-12. 13/18 acres of agricultural land by way of purchase and inheritance. Out of this an area of 138-21 5/16 acres was acquired by the petitioner himself after 1st January, 1959. He exchanged part of this area with other land received by him from his uncle Sher Mohammad and one Datar Dino before he joined Government service on 2nd October, 1969 in the Forest Department. Thus, on the date of his entry into Government service the total land held by the -petitioner came to be 281-7 5/b acres.

2. In addition to the area referred to above, after his joining Government service he admittedly acquired 115-06 acres of land in the name of his daughter Mst. Zaibunrsa. According to the petitioner his brother Muhammad Ramzan, who happened to be unmarried, and issueless purchased an area of 104-21 J, acres in Deh Detha and 27-17 acres in Deh Palano in the name of his daughter Mst. Fauzia, through registered sale-deeds executed on 1st January, 1971. Out of the land purchased by his brother in the name of his daughter the petitioner sold an area of 104-211 acres in Deh Detha to one Abdul Aleem on 2nd January, 1971. He also sold an area of 118-23 acres in Deh Fatehpur out of the area held by him in his own name which he had received m exchange, to one Arz Muhammad on 27th . December, 1971. Consequently at the time of the promulgation of the Land Reforms Regulation, 1972 (hereinafter referred to as the Regulation), the petitioner held tire following areas :- (a) Area acquired by the petitioner before 2nd October, 1969, the date on which he joined service ..162-24 5/6 acres. (b) Area acquired by the petitioner in the name of his daughter Mst Fauzia after he joined service ..115-6 acres. (c) Area held by Mst. Fauzia, acquired through her uncle Mohomed Ramzan-27-17 acres Total 305-7 5/6 acres

3. On the promulgation of the Regulation, the petitioner as required by para 12 thereof, filed declaration in the prescribed form disclosing his holding. Upon scrutiny of the said declaration the Deputy Land Com missioner, Nawabshah, found that a total area of 279-21 4/9 acres war held by the petitioner on the date of the promulgation of the Regulation as land acquired by him in his own name or in the name of his legal heirs but since the petitioner entered Government service on 2nd October, 1969, only the land acquired by him after such date would fall within the purview of. paragraph 10 of the Regulation. Such land acquired during the relevant period according to the finding of the Deputy Land Com missioner, came to only 131-30 acres in the name of his daughter Mst. Fauzia out of which 104-21 acres were sold leaving a balance of only 27-17 acres in her name. As regards this land the Deputy Land Com missioner believed the documentary evidence produced by the petitioner showing that the said land was acquired by the brother of the petitioner Muhammad Ramzan in the name of his daughter. Consequently, he held by his order dated 25th May, 1972 that the said area is also not- liable to be resumed under para. 10 of the Regulation. However, since admittedly the petitioner had acquired another area of 115-04 acres in the name of his daughter Mst. Fauzia after entering into Government service he ordered the resumption of the excess area of 115-04 acres from that land under para. 10.

4. In the year 1976, however, respondent No. 1, reopened the case in exercise of iris suo motu powers of revision under para. 29 of the Regulation. After hearing the petitioner the learned respondent No. 1 passed the impugned order dated 21st December, 1976, holding that the Deputy Land Commissioner had wrongly excluded the lands acquired by the petitioner prior to his entry into Government service and further held that the area of 131-38 acres standing in the name of his heir was also within the purview of para. !0 as Mst. fiauzia was his legal heir. In this view of the matter respondent No. 1 set aside the order of the Deputy Land Commissioner and directed that the aforesaid area should be included in the holding of the declarant for the purpo3es of para. 14 of M. L. R. 115 and the case determined afresh. 5, We have heard M. Imam Ali Kazi and Mr. Nasruliah Awan for the parties respectively.

6. In Const. Petition No. 296 of 1977 Jamaluddin v. O. S. D. Federal and Commission and others we have already rejected the construction laced by the respondent No. 1 on para. 10 of the Regulation to the effect that the said para. extends in its application to all transactions whereby a person in the civil service of Pakistan has acquired an, land when irrespective of whether such transactions are of a date prior to the date of his entry in Government service if they `all within the prescribed period between 1st January, 1959 and two years of such Government servant's ceasing to be in service. In our view the restrictions placed by para. 10 upon holding of land beyond 100 acres only relate to transactions of acquisition of land within the specified period provided they are of a date after the entry into Government service by such Government, servant and until two years of his ceasing to be in service. The very taco that the disability ceases on the expiry of a period of two. years after the Government servant has ceased to be in service quite plainly discloses the m legislative intendment that the embargo is related to the fact of the person being in Government service which gives him it position of influence. Clearly, therefore, having regard to the apparent object of the enactment any land acquired by a person before his entry into Government service will not be open to any such objection and was therefore, clearly untended to be outside the scope of para. 10.

7. It was also pointed out by the learned counsel for the petitioner that para. 10 does not authorise the relevant authority to take into account the land already alienated which was no longer held by the declarant on the date of the declaration. We agree with this proposition. The power of scrutinizing alienations which have taken place prior to the date of enforcement of the Regulation is conferred by para. 7 of the Regulation and there is no such power vesting in the authorities in cases governed by para.

10. The latter provision merely places an embargo upon lands held by persons mentioned therein beyond the prescribed sealing if it was acquired in the manner provided therein. This is further clear from para. 12 sub-clause (d) of the Regulation which is in the following terms : -

12. Declarations.-(1) A Commission may, by order published in, the official gazette, direct the following classes of persons to submit to such authority, in such manner and form and by such date, as may be specified in the order, the following declarations :- (a) .................. (b) .. (bb) . (c) (d) declarations by persons in Civil Service of Pakistan and other persons to whom the provisions of para. 10 apply, who own or possess land in excess of the permissible limits laid down in the said para." A plain reading of the above provisions makes it clear that para. 10 is concerned with the present holding of the declarant and does not deal with the past alienations of such land. It, therefore, follows that the respondent No. 1 was not justified in going into the alienations made by the petitioner in respect of land which was no longer held by him at the date of the declaration. The language of para. 10 marks it abundantly clear that the said provision is attracted in case of land held by the heirs of a person in the civil service of Pakistan provided .the same was acquired by such person in the name of his heirs or for that matter in the name of any other person. The intention of the law maker was clearly to extend the restrictions contained in para. 10 to be `benami' transactions of acquisition of land by a Government servant. Consequently the learned Deputy Land Commissioner, was right in excluding the aforesaid area of land from the purview of para. 10 on being satisfied upon evidence produced before him that the same was acquired not by the petitioner but by his brother in the name of his daughter. The learned respondent No. 1 did not upset the findings of the Deputy Land Commissioner but proceeds to include this area as land held by the petitioner merely on the ground that it was so held by his legal heirs. The view taken by the respondent No. 1 is clearly untenable.

8. In the result the impugned order cannot be sustained and is consequently declared as passed without lawful authority and to be of no legal effect. The result is that the order of Deputy Land Commissioner, Hyderabad dated 25th May, 1972 shall stand restored with all its con sequences. There will be no order as to costs. I. MAHMUD, J.-I agree. M. Y. M. Order accordingly.