1986 PLP 804 (MLD)

Malik Rabnawaz, petitioner No. 1 in this writ petition was owner of considerable agricultural land in village Radali of Tehsil Khushab. In 1969 he made an oral gift of about 1440 Kanals in favour of his wife and two sons. The relevant mutation was attested by the revenue officer on 30‑5‑1969. After the promulgation of Martial Law Regulation 115 this gift was scrutinized by the Provincial Land Commission but apparently nothing objectionable was found with it. Subsequently, this gift came to the notice of the Federal Land Commission which on 30‑7‑1976 decided to review it. Accordingly, notices were ordered to be sent to Malik Rabnawaz and the three donees whereby they were to be directed to appear before a Member of the Federal Land Commissioner on 19‑8‑1976. On the last mentioned date neither the donees nor Malik Rabnawaz appeared before the Member, consequently, he proceeded with the case ex, parte. The Member took the view that the gift in so far as it related to the wife was valid but that in respect of the two sons it was invalid. Accordingly, he set aside the gift so far as the two sons were concerned. To challenge the order of the Member, Malik Rabnawaz and the two sons have filed this writ petition.

2. The first contention raised in support of this petition is that the learned Member of the Federal Land Commission had passed the order without giving a hearing to the petitioners. It is alleged that even though there was an order on the file that notices be sent to them and that a citation should appear in the Press nothing of the sort was done and that they were condemned unheard. Learned counsel representing the Federal Land Commission has brought the relevant record with him. He admits that there was no postal receipt or acknowledgment receipt on the record. Similarly, there is nothing to show that any citation was in fact published in any newspaper. It also does not appear to which newspaper the citation was sent for publication. He also admits that ordinarily the file should have contained all the relevant information and the receipts. This being the position, I find substance in 'the assertion of the petitioners that the learned Member reviewed the mutation at their back without giving them any opportunity of being heard.

3. In the impugned order, the learned Member has stated that the parties had been served. Learned counsel appearing for the Land Commission states that I should accept this recital as correct for under section 114 of the Evidence Act, a presumption of regularity attaches to all official acts. Considering that the relevant file does not support the recital with regard to service, I do not think that this is fit case where such a presumption should be drawn.

4. There is another aspect of the matter also. The impugned order was passed by the learned Member while sitting singly. This was despite the fact that the powers of suo motu review is vested in the Land Commission as a whole and not in any single member. In this context I would refer to a decision of this Court in Ashiq Muhammad Khan Mazar v. Chairman Federal Land Commission P L D 1977 Lah.

461. It will thus appear that the order of the learned Member was without jurisdiction.

5. For the reason stated above, I declare that the order passed by the Federal Land Commission on 19‑8‑1976 was of no legal effect as it was passed in violation of the rules of natural justice by a person whop was not competent to make it. The petitioners shall also have the costs of this petition. M.Y.H. Writ accepted.