P L D 1983 Lahore 394 (PLP)

SHAFIUR RAHMAN, J.-This judgment disposes of two Constitutional petitions, one filed by the donor-declarant and the other by the donees. They both seek to establish as bona fide a transaction reflected by mutation of gift No. 40 of village Faiz Wah, Tebsil Vehari, District Multan, on 26-7-1969 which had been rendered void by operation of para. 7, clause (1)(b) of Land Reforms Regulation No. 115.

2. The case of the petitioners was that there was an agreement between Malik Jebangir Khan and Khalid Mahmud. and six others whereby agricultural land was to be purchased by them to the extent of 2/7th shares by Khalid Mahmud and Narsullah and to the extent of 5/7th shares by Walidad and four others. The amount required to' be paid was Rs. 2,45,

000. An agreement to sell the land had been entered into on 28-6-1969 wherein it was agreed that the transaction would be got entered and attested in . the revenue record as one of gift to protect it against any prospective claim of pre-emption by others. Malik Jehangir Khan, .the vendor, went to, the Patwari and reported the transaction on 19-7-1969 given it out to be a gift. Report was recorded by the Patwari. A mutation of gift was entered %and attested by the appropriate revenue officer on 26-7-1969. On the enforcement of the Land Reforms Regulation 115 Malik Jehangir Khan submitted his . declaration showing this transaction as entered in the revenue records to be one of gift and seeking protection for it, The Land Commissioner, Multan considered it on 7-7-1972 and held that gift being in favour of unrelated persons "seemed mala fide". Hence it was held invalid. Appeals were preferred by the declarant as well as the donees. The then Chief ' Land Commissioner Punjab, examined at length the agreement to sell, the registers of the petition writer and the stamp-vendor and the pleas taken up by the petitioners. He did not doubt the agreement to sell and the earlier arrangement between the parties but held that it stood substituted by their declaration before public authorities on the basis of which mutation of gift was entered and got attested. The then Chief Land Commissioner also found an element of estoppel in it. He did not treat it as a bona fide transaction. Two revisions were taken to the Federal Land Commission which were disposed of by its Chairman. He gave a number of reasons for not holding the transaction a bona fide one. Hence these petitions.

3. The learned counsel for the petitioners has contended that it was open to the petitioners to adopt any device or disguise which suited them and at the relevant time they thought it best to adopt the disguise of gift for what was actually a sale, the object being to avoid a pre-emption claim. Notwithstanding their representation to the public authorities, and the latter acting on it, they could now take a different position and yet keep intact bona fide by saying that it was a sale for consideration. There was, according to the learned counsel for the petitioners, no element of estoppel involved because it was an arrangement between parties and the parties were even now united in showing that . it was a sale and not a gift.

4. In order to be clear as to what extent this Court can go into the submissions made by the learned counsel for the petitioners, it is necessary first to ascertain the nature of the power that was being exercised . by the Land Commission Authorities. Para. 7(1)(b) of Land Reforms Regulation 115 had the effect of making transactions of this description entered into between 1st day of March 1967 to 9th day of December, 1971 void. They could be held to be not void only if the Commission was satisfied in an individual case that it was a bona fide transaction. The law also prescribed the categories of transactions in which the Commission will not hold a transaction to be a bonafide transaction e.g. if the gift were made by a person in favour of persons who were not his heirs or a specified relation satisfying the required condition. This clause directly hit the donees in the present case if the transaction was taken to. be a gift as it appeared ex facie. Additionally, it was for the petitioners to satisfy that it was not a gift and that it was a bona fide transaction and the satisfaction had to be of the Land Commission authorities.

5. The Chairman of the Federal Land Commission who has finally dealt with the claim of the petitioners in a very detailed order gave the reason for his being not satisfied with regard to the bona fide of the transaction, On merits it was held that the petitioners were certainly free to enter into an agreement to sell the. land but by their admissions made before public authorities they replaced or substituted that agreement by declaration which will hold the field. Their declarations were reduced to writing. They were incorporated in the public record and at no earlier stage disowned. They could not, therefore, be permitted to blow hot and cold, to approbate and reprobate, to derive benefit at one time by showing it to be a gift and at other a sale. The Chairman found - "many doubtful circumstances" and narrated some of them. He concluded that "if such transactions are allowed to be upheld as bona fide transactions, this will have way for numerous fraudulent transactions. It is not very difficult .to procure stamped papers in the back date and to give any particular colour". It was also found that in their declarations they had disclosed this transaction as a gift and not as a sale.

6. The reasons given by the Chairman, Federal Land Commission were all relevant to. the fact in issue and he could in face of these factors reasonably reach the conclusion that bona fide nature of the transactions was established. There was no factor totally extraneous or irrelevant which may have been taken into consideration, for arriving at that decision. Besides` we are also of the opinion that the petitioners cannot seek an equitable relief through a constitutional petition when their own conduct has been of always attempting the avoidence of the law applicable to them. There is no merit in these petitions which are dismissed with costs. M. A. K.????????? Petition dismissed