1995 PLP 1421 (CLC)

MALIK MUHAMMAD QAYYUM, J.‑‑‑This judgment shall dispose of W.P. No. 683/77 and W.P. No.104/89 which involve the same controversy.

2. Ghulam Murtaza petitioner in W.P. No. 683/77 was owner of considerable agricultural land comprised in various villages of District Multan. On the promulgation of Land Reforms Regulation, 1972 (MLR 115), he submitted the requisite declaration which was scrutinised by the Deputy Land Commissioner, Multan who vide his order dated 25‑7‑1972 held that in addition to 12000 Produce Index Units, the petitioner was also entitled to retain Additional land equivalent to 2000 Produce Index Units on the basis of ownership of a Tractor in terms of para. 8 of the Land Reforms Regulation, 1972. The total entitlement of the petitioner was determined at 13847 Produce Index Units and nothing was found to be in excess.

3. After about three years, the order of the Deputy Land Commissioner was set aside by the Member of the Federal Land Commission in the exercise of suo motu revisional powers on 20‑9‑1976 who was of the view that as the Tractor was not registered in the name of the petitioner under the Motor Vehicles Ordinance, 1965, he could not be considered its owner. The Member, Federal Land Commission, therefore, directed the resumption of land equivalent to 4179 P.I U.S. which, according to him was in excess of the entitlement of the petitioner. This order of the Member Federal Land Commission has been assailed by the petitioner in this Constitutional petition. 3‑A. It appears that earlier on 30‑6‑1967 and 25‑3‑1971 the declarant had entered into two transactions, vide mutation No.2 sanctioned on 30‑8‑1967 relating to 1172 Kanals, 12 Marlas situate in Chak No. 149/WB, Tehsil Melsi District Vehari and vide mutation No. 31 in respect of 108 Kanals and 15 Marlas of land situate in Chak No. 200 W.B. which was sanctioned on 25‑3‑1971. The former mutation purports to be one of gift, though, according to Ch. Khurshid Ahmad, learned counsel for the petitioner in W.P. No. 104/89, the transaction was in fact that of a sale but was given a colour of gift. The second mutation is one of sale.

4. These two mutations were declared to be void in terms of para. 7(1)(b) of M.L.R. 115 and invalid by the Land Commissioner vide order dated 22‑6‑1972. Pursuant to the order of the Federal Land Commissioner mentioned above, declarant namely Ghulam Murtaza was called upon to surrender area of his choice. He exercised that option by surrendering the land covered by two mutations mentioned above. Khawar Abbas etc. petitioners in W.P. No. 104/89 claiming to be the vendees filed an appeal against the order dated 22‑6‑1972 of the Federal Land Commissioner which was treated as a revision and was dismissed by the Chief Land Commissioners solely on the ground of limitation. In their Constitutional petition (W.P. No. 104/89), Khawar Abbas etc. have challenged the order of the Chief Land Commissioner dated 30‑9‑1988 as also the earlier orders.

5. The learned counsel for Ghulam Murtaza, petitioner in W.P. No.683/77, has contended that the Member, Federal Land Commission has acted illegally in refusing to allow to the petitioner the benefit of para. 8 of the Land Reforms Regulation, 1972 on the sole ground that the Tractor of which the petitioner claimed to be the owner had not been registered in the name under the Motor Vehicle Ordinance, 1965. In support of this contention, the learned counsel has relied upon Syed Zulfqar Ali Shah v. The Chairman Federal Land Commission, Islamabad (1987 CLC 2092), Nawab Mir Allah Dad Khan v. Officer‑on‑Special Duty/FLC, Joint Secretary, Federal Land Reform Secretariat, Islamabad (1989 MLD 3583) and Mir Muhammad Khan and another v. Officer‑on‑Special Duty, Federal Land Commission, Rawalpindi and another (1993 MLD 1356).

6. Ch. Khurshid Ahmed, learned counsel for the petitioners, who are subsequent vendees/donees has. argued that the petitioners had been condemned unheard and have been deprived of the area duly purchased by them without any notice or hearing. According to him, though the‑ transaction involved in mutation No.2 was shown to be a gift but it was in fact a sale and was, therefore, not hit by para. 7(1)(b) of Land Reforms Regulation, 1972 and could not have been nullified by the Chief Land Commissioner without going into the question whether or not the transaction was bona fide. In the alternative, it was argued by the learned counsel that Ghulam Murtaza could not have been allowed to exercise his choice so as to surrender the land which he had already sold and he should have been compelled to give up the land out of his own holding. In support of this contention reliance has been placed upon Mst. Zuhran Khatoon and 8 others v. The Member, Federal Land Commission (1985 SCMR 312).

7. The learned Assistant Advocate‑General, who appeared on behalf of the respondents has opposed this petition. .

8. Taking up W.P. No. 683/77 first, it is to be seen that the Deputy Land Commissioner had allowed the petitioner the benefit of 2000 P.I. Units under para. 8 of the Land Reforms Regulation, 1972 as the petitioner was found. holding a tractor in working condition. While coming to this conclusion, the Deputy Land Commissioners in his. order dated 25‑7‑1972 had relied inter alia, upon the report of the Revenue Field Staff. Learned counsel for the petitioner submitted that a receipt dated 15‑6‑1970 showing the sale of tractor by Ghulam Akbar Khan, its registered owner, to the petitioner was also produced before the Deputy Land Commissioner.

9. Unfortunately, this aspect of the case was not examined by the Federal Land Commission, which proceeded to set aside the order of Deputy Land Commissioner only for the reason that the Tractor did not stand registered in the name of declarant. 10, This approach of the Federal, Land Commission was clearly contrary to law. There is nothing in para. 8 of the Land Reforms Regulation, 1972 to warrant the assumption that only a person registered as owner of the tractor can claim the benefit of that Regulation. On the other hand, the legal requirement is that the declarant must be the owner of a tractor which has been certified to be in good working order by an Officer authorised by the commission in this behalf. The Deputy Land Commissioner had on the basis of the report of the Revenue Field Staff come to the conclusion that the petitioner was the owner of Tractor in working order. If that finding of fact was correct, the petitioner was clearly entitled to the benefit of para. 8 of the Land Reforms Regulations, 1972, whether or not the tractor was registered in his name. It was open to the petitioner to establish his ownership otherwise than through the record of Registration Authority. In Mir Muhammad Khan and another v. Officer‑on‑Special Duty, Federal Land Commission, Rawalpindi and another (1993 MLD 1356), it was ruled that‑‑‑ . "Mr. Muhammad Ismail, learned counsel appearing for the petitioners, has strenuously contended that the findings arrived at by the learned O.S.D./Joint Secretary are not sustainable under the law, as according to paragraph 8 of M.L.R. 115, what the learned Deputy Land Commissioner was required to determine was, whether the petitioners' predecessor‑in‑interest owned an agricultural tractor and whether the same had been certified by an Officer authorised by the Land Commissioner to be in good working order. Admittedly the certificate issued by the Assistant Commissioner indicated that the petitioners' predecessor‑in‑interest as owner of the tractor and that the same was in a working order. Our attention has been invited by the learned counsel to number of cases including the case of Nawab Mir Allah Dad Khan v. Officer‑on‑Special Duty/FLC, Joint Secretary Federal Land Reform Secretariat, Islamabad (1989 MLD. 2583) wherein a Division Bench of this Court while construing the provisions of paragraph 8(2) of M.L.R. 115 in relation to owning of a tractor held that ownership cannot be denied merely on the ground that it was not registered in the name of the declarant. Factually, the tractor had been purchased by the declarant before the target date and it was in working condition duly certified by the officer concerned. Some of the other cases relied upon by the learned counsel are reported as Mst. Fatima v. Addl. Chief Land Commissioner, Sindh, (1981 CLC 942) and Ghulam Mustafa v. Officer‑on‑Special Duty, (1984 CLC 824) which, no doubt, lend full support to the contention raised. by the learned counsel." . We are not persuaded to take a different view and following the dictum in the aforesaid case held that the Member, Federal Land Commission had clearly misdirected himself by holding that unless a Tractor is registered in the name of landowner, he could not claim the benefit of section 8(1)(b), before interfering with the order of Deputy Land Commissioner it was incombant upon the Member, Federal Land Commission to have come to the conclusion, whether or not the petitioner in fact owned a tractor in working order and the question of its registration or non‑registration was not material.

11. In the light of the findings given above, it is not necessary to advert to the contention raised by, the learned counsel for the petitioner in W.P. No.104/89. We cannot, however, help observing that as two mutations stood sanctioned in faVour of the petitioners and had been given effect to~ in the Revenue Record, the land which stood entered in their names could not be taken away without at least granting them an opportunity of being heard. Furthermore, while allowing the owner to exercised his choice regarding retention of area, the question as to whether the land which already stood transferred to another person could be resumed at the option of the land?owner merited serious consideration at the hands of the Federal Land Commission. In view of what has been stated above, both these petitions are allowed, the impugned orders are declared to be without any lawful authority and of no legal effect and the case is remitted to the Federal Land Commission for decision afresh in the light of the observations made above. No order to costs. A.A./G‑281/L????????????????????????????????????????????????????????????????????????? ??????????? Petition accepted.