P L D 1975 Karachi 291 (PLP)

ABDUL KADIR SHAIKH, J.‑These eight petitions having been jointly heard are being disposed of by this consolidated order. The facts briefly stated are that the petitioners, Bibi Mehrun‑Nisa, Bibi Nasim Akhtar, Syed Pir Shah, Syed Mahmood Ahmed Shah, Bibi Allah Rakhi, Bibi Qammarun Nisa, Bibi Fatma and Bibi Khanzadi, who figure as petitioner No. 1 in each Petition. belong to the family of Syed Hassan Bux Shah, and they own total area of about 3,768 acres of land in Taluka Sakrand, District Nawab shah. After the promulgation of M. L. R. 115, these petitioners filed De clarations, in the prescribed Forms, for the approval of the alienations made by them of certain areas of land during the period between 1st March 1967 and 19th December 1971. Their cases were dealt with by Mr. Abdullah D. Baloch, the Land Commissioner, Sind and he approved all the transactions by the orders passed separately on 2‑6‑1972. The orders passed by him in each case may be usefully reproduced hereunder:‑ In Constitution Petition No. 1151 of 1973 filed by Bibi Mehrun Nisa, Azad Ismail and Chibher the order reads:‑ "The declarant Bibi Mehrunnisa has disclosed alienation during the specified period as follows: Deh Name to whom gifted Relationship Area 16‑Jamjodho

1. Azad Ismail

74‑25

2. Chibher 74‑25 4‑Bachal

1. Azad Ismail

14‑05 Rahu

2. Chibher

14‑05 5‑Sobho

1. Azad Ismail

55‑18 Lund

2. Chibher. Tharo

1. Azad Ismail

32‑16 Uner

2. Chibher

32‑16 ________ 297‑30 ________ All these alienations have been made by way of statement before the Mukhtiarkar and they stand entered in the revenue record. The alienations have been made much before the crucial date i.e. 20‑12‑

72. The consideration passed is adequate. The transferees are in effective possession of the land. They are managing it, appropriating the produce and also paying the Land Revenue. In the circumstances I declare them to be not void under para. 7 of the Regulation." In Constitution Petition No. 1167 of 1973, filed by Mst. Bibi Nasim Akhtar, Dawood and Moosa, the order of the Land Commissioner, Sind, reads as under:‑ "The declarant has made alienation during the specified period as under: ‑

1. Dawood Haji 14‑00 acres Deh Sale by Mohammad. 14‑00 acres Noor statement Bhura Dated 25‑2 67.

2. Moosa Jan Mohammad.

1. Dawood Haji 28‑00 acres Deh Sale by Mohammad. Jam statement

2. Moosa Jan Jado Dated Mohammad. 25‑2‑67 do 49‑04 acres Deh Mehrab‑ pur. do 197‑22 acres Deh do Ladho Chandio The land has been alienated by way of sale. The alienation is for adequate consideration. The transferees are in effective possession of land. They are appropriating the produce and paying the Land Revenue also. In the circumstances, I declare the alienation to be not void under the Regulation." In Constitutional Petition No. 1168 of 1973, filed by Syed Pir Shah, Mst. Niamat, Syed Ghulam Mustafa Shah and Muhammad Ismail, the order reads as under: "The declarant Syed Pir Shah alias Bashir Ahmed Shah has disclosed alienation during the specified period as follows:‑‑ Deh Name to whom gifted Area Consideration Out/sold passed Samu

1. Mst. Niamat 31‑02 Rs. 37,260

2. Syed Ghulam Mustafa Shah 31‑02

3. Mohammad Ismail 31‑02 12‑ Mehrab‑ do 152‑25 Rs 61,050 pur. 14- Ladho Chandio do 186‑13 Rs.74,550 All these alienations have been made by way of sale before the cruel date i.e. 20‑12‑1971. The consideration passed is adequate. The transferees are reported to be enjoying the produce, managing the land and paying the land revenue also. In the circumstances I declare these alienations to be not void under para. 7 of the Regulation." In Constitutional Petition No. 1169 of 1973, filed by Syed Mahmood Ahmed Shah, Haji Mohammad and Mohammad Ibrahim, the order of the Land Commissioner reads as follows:‑‑ "The declarant disclosed the following alienations during the specified period:

1. Mr. Haji Mohammad son of Ali Mohammad 72‑11 acres 2530 PIUs.

2. Mr. Mohammad Ibrahim son of Haji Mohammad 72‑11 acres 2530 PIUs.

3. Mr. Mohammad Ibrahim son of Haji Mohammad 130‑14 acres 5263 PIUs. These alienations have been effected through statement dated 25‑2‑67, which has been verified by the Mukhtiarkar on 19‑3‑1971. The alienations are by way of sale. The alienations appear to be for adequate consideration and the possession of the land is with the transferees who. are managing it and appropriating its Batai and also paying the Land Revenue. I hold that these alienations are bona fide. I, therefore, declare them to be not void under para. 7 of the Regulation." In Constitutional Petition No. 1170 of 1973, filed by Mst. Bibi Allah Rakhy, Sadiq and Mohammad Saleh, the order of the Land Commissioner, Sind reads as under:‑ "The declarant Mst. Bibi Allah Rakhi has disclosed alienations during the specified period as follows: ‑ Deh Name to whom gifted out/sold Relation‑ Area ship 4‑

1. Sadik son of Gul Mohammad Bachal Dahri. 152‑00 Rahu

2. Mohammad Saleh Mohammad Soof Memon. 9‑Noor Bhura. do ‑‑ 48‑14, Rahibshah, do ‑ 58‑00 _______ 258‑14 _______ All these alienations have been made for adequate consideration by way of statement before the Mukhtiarkar on 25‑2‑1967. The transferees are reported to be in effective possession of the land. They are managing it and appropriating the produce and also paying the land revenue. In the circumstances I declare these alienations to be not void under para. 7 of the Regulation." In Constitutional Petition No. 1171 of 1973, filed by Mst. Bibi Qamerun ‑nisa, Mst. Kaniz Fatima and Mst. Shahzadi, the order of the Land Commissioner, Sind reads as follows:‑ "The declarant Bibi Qammurunnisa has disclosed alienations during the specified period as under:‑ Deh Name to whom gifted out Relation‑ Area gifted ship Sabho 1 Qaniz Fatima wife of Pir Shah 158‑30

2. Shahzadi daughter of Pir Shah. 7 Dahri do 60‑14 Tharo Uner do 30‑14 _______ 240‑18 _______ All these above alienations have been effected long before the crucial date i.e. 20‑12‑1971. They stand entered in the Revenue Record also. In case of sales the consideration is adequate. The transferees are in effective possession of the land. They are managing it, appropriating the, Batai and paying the land revenue. In the circumstances. I declare all these alienations to be not void under para. 7 of the Regulation." In Constitutional Petition No. 1172 of 1973, filed by Mst. Bibi Fatima, fir. Razaak and Mst. Asia the order of the Land Commissioner is as follows:‑ "The declarant Bibi Fatima has disclosed alienations during the specified period as follows:‑ Deh Name to whom gifted out/sold Relation‑ Area ship 2‑ A. Razaak son of Abdul Shakjo Latif son 115‑20 Menahejo 3‑Samo Mst. Asia wife of Abdul Raho Latif wife 27‑20 10‑ Bhura 87‑20 11‑Rahib Shah do do 14‑00 Tharo Uner do do 15‑18 Jenjo Dhoje do do 28‑00 _______ 288‑16 _______ All the alienations have been made much before the crucial date i.e. 20‑12‑1971. The consideration passed is also adequate. The transferees are reported to be in effective possession of the lands as from 1967 onwards. They are managing the land, appropriating the Batai and paying the Land Revenue also. I hold therefore that the alienations are bona fide. I therefore declare them to be not void under para. 7 of the Regulation." In Constitutional Petition No. 1173 of 1973 filed by Mst. Bibi Khanzadi, Abdul Ghafar and Mst. Aminat, the order reads as under:‑‑ "The declarant Bibi Khanzadi has disclosed alienations during the specified period as follows: Deh Name to whom gifted out Relationship Area gifted or sold 4‑

1. Abdul Gbafoor son of Abdul Sale 173‑22 Bachal Latif. Rahu

9. Noor

2. Mst. Amnit w/o Bhura Mohammad Jamil and others 64‑00 Mad. 12‑Mehrab 27‑36 pur 14‑Ladho Chandio 19‑00 ______ 318‑98 ______ All these above alienations have been made by way of sale for adequate consideration through statement before the Mukhtiarkar on 25‑2‑1967. Mutation in the Record of the Rights has also been effected. The transferees are in effective possession of the land purchased by them. They are managing it, appropriating the produce and also paying the land revenue. I therefore declare these alienations to be not void. under para. 7 of the Regulation." The cases of the petitioners were afterwards examined by the Chief Land Commissioner, Sind. The circumstances in which he did so are clear from the Report made by him to the Chief Minister of Sind on August, 1973. Since detailed arguments were addressed at the Bar in regard to this aspect of the: case, the Report is reproduced in extenso:‑ "From: Mr. Nusrat Hasan, C. S. P., Chief Land Commissioner, Sind Hyderabad, dated 1‑8‑1973. Summary for Chief Minister, Sind Subject: Application dated 28‑12‑1972, from Mr. Hakim Ali Zardari M. N. A. complaining, against Syed Hasan Bux and his family members. Zamindars of Taluka Sakrand, for escaping the effect of Land Reforms Regulation. Reference is invited to Chief Minister's marginal minute dated 8‑1‑1973 on the application dated 28‑12‑1972 of Mr. Zardari.

2. The applicant in his representation to the Chief Minister has mainly stated that Syed Hassan Bux Shah and his family members have fraudulently transferred their holdings in the names of bogus persons to save the land from resumption. He, therefore, requested that an impartial enquiry may be instituted and the lands which have been retained fraudulently, be resumed from their khattas.

3. A copy of this application, received by the Chief Land Commissioner on 1‑1‑1973, was passed on to the Land Commissioner, Sind, with the minute that a copy of it be sent to the Deputy Land Commissioner, Nawabshah, for looking into it personally, and report.

4. I have seen the order dated 8‑7‑1959 of Deputy Land Commissioner,. Nawabshah indicating that an area of 512‑11 acres equal to 17,925 PlUs had been resumed from Hasan Bux Shah son of Syed Pir Shah situated in Taluka Sakrand and Nawabshah in various villages (dehs) as per Schedules It (Appendix K).

5. I have also seen Schedule II signed by the Deputy Land Commis sioner, Nawabshah, appended to his order dated 8‑6‑1959 indicating the land resumed from Randal Shah alias Shabir Ahmed Shah. As per this Schedule' resumed area is 163‑14 acres equal to 5,715 PIUs.

6. Similarly land resumed from Syed Pir Shah alias Bashir Ahmed Shah as per order dated 6‑6‑1959 of Deputy Land Commissioner, Nawabshah is 79‑16 acres equal to 2,787 PIUs.

7. Therefore, obviously the remarks of Mr. Hakim Ali Zardari that the lands of the family members of Syed Hasan Bux of Mehrabpur had not been resumed to Land Commission West Pakistan, is not correct and is against the factual position as per record and indicated above. The total area resumed from the family members of Syed Hasan Bux Shah son of Syed Pir Shah is 751‑01 acres equal to 26,427 PIUs under Land Reforms Regulation, 1959.

8. With regard to the present Land Reforms, the position is that the Land Commissioner, Sind has passed the order, confirming the following.alienations in favour of the persons shown against each:‑' Serial Name of Area Area alienat‑ Nature Area Date Considera‑ No. declarant held ed to whom of tion alienated transac tion

1. Syed Pir 602-273/4 1 Mst Sales 31‑2 19-3-71 37,260.00 Shah alias Niamat 31-2 Bashir 2 S. Ghulam Ahmed Mustafa 61,000.00 Shah 31‑2 74,550.00 3 Mohd. 152‑25 Ismail 186‑15 4 ditto ‑‑‑‑‑ ______ 5 ditto 432‑6

2. Syed Mohd. 1 Haji Ahmed 482‑12 Mohd. 144‑22 58,860.00 Shah son of Ali Mohd. 2 ditto 150‑14 60,148.00 _______ 294‑6

3. Bibi 457‑18 1.Abdul 288‑16 400 per acre Fatima Razak son daughter of Abdul of Hasan Latif Bux Shah

2. Mst. Asia W/o Abdul Latif _______ 288‑16 4 Bibi Qamar 435‑4 1 Qaniz Fatima 158‑30 Nisa d/o w/o Pir Shah Hasan Bux Shahzadi d/o 63,200‑00 Shah Pir Shah in equal shares. 2 ditto 60‑14 19‑3‑71 24,140.00 3 ditto 60‑14 15,060.00 _______ 249.18 ________ 5 Bibi Khanzadi 474‑23 1 Abdul Ghafur 175‑22 70,320.00 w/o S. Hasan s/o Abdul Bux Shah Latif 2 Mst. Amanat w/o Mohd. Ismail. 3 ditto 64‑0 25,600.00 4 ditto 31‑31 14,965.00 5 ditto 27‑36 11,160.00 6 ditto 19‑00 7,600.00 ________ 258‑14 _________ 6 Bibi Allah 392‑21 1 Saddik s/o 152‑0 60,800.00 Rakhi Gul Mohd. 2 ditto 48‑14 19,340.00 3 ditto 58‑0 23,680.00 _______ 258‑14 _______ 7 Bibi Nasim 455‑39 1 Daud s/o 14‑0 11,200.00 Akhtar w/o Haji Mohd. ShabirAhmed 2 Musa s/o 14‑0 Shah Jan Mohd. 3 ditto 28‑0 11,700.00 4 ditto 49‑4 19,640.00 5 ditto 197‑22 79,020.00 8 Bibi Mehrun, 457‑25 1 Azad Ismail 74‑25 59,700.00 Nisa d/o S. 2 Chibhar 74‑25 Hasan Bux 3 ditto 14‑5 Shah 4 ditto 14‑5 5 ditto 55‑18 11,300.00 32‑16 32‑16 _______ 297‑30 _______

9. Further enquiry was made by me on 18‑1‑1973 in respect of Ms. Mehrunisa and Pir Shah alias Bashir Ahmed Shah out of the above‑named eight declarants (of MLR‑115) and I satisfied myself that the orders passed by the Land Commissioner, Sind in these two cases respectively are justified and appropriate. After this complaint from Hakim Ali Zardari a further enquiry was conducted and record scrutinized thoroughly.

10. The complaint of Mr. Zardari was sent to the Deputy Land Com missioner, Nawabshah, for his comments, who has sent the following report indicating the position as under: That all eight declarants of the family of Syed Hassan Bux Shah were holding total area of 3,758‑101 acres equal to 1,28,080 PIUs and that by sale statement before the crucial date viz. 1‑3‑1967 they had dis posed of an area of 2,442‑351 acres equal to 45,228 PIUs on their khatas as stood on 20‑12‑1971. The khatas in respect of the alienated area described of the area owned by these declarants, area alienated by them and the balances left with them are shown as under:‑‑ __________________________________________________________________________________________ Sl. Name of declarant. Area held as per Area under alie‑ Net area No. declaration form. nation allowed allowed by by Land Commis‑ D. L. C. to sioner. be retained by declarant. _________________________________________________________________________________________ 1 2 3 4 5 _________________________________________________________________________________________ Area. PIUs. Area PIUs. Area PIUs. 1 Syed Pir Shah alias 602‑263/ 17638 432‑6 12530 170‑21 5108 Bashir Shah. 4 2 Syed Mohd. Ahmed 482‑12 16771 294‑36 10323 187‑16 6559 Shah. 3 Bibi Fatima d/o 457‑18 16009 288‑16 10077 169‑02 5932 Hasan Bux Shah. 4 Bibi Qamarunisa d/o 435‑04 15228 249‑18 8730 185 6498 Syed Hasan Bux Shah. 5 Bibi Khanzadi w/o 474‑23 16612 319‑09 11138 155‑13 5474 Syed Hasan Bux Shah. 6 Bibi Allah Rakhy d/o 392‑21 13737 258‑14 9041 123‑07 4696 Syed Pir Shah. 7 Bibi Nasim Akhtar 455‑39 15959 302‑26 10593 153‑13 5366 w/o Shabir Ahmed Shah. 8 Bibi Mehrunisa d/o 457‑26 16016 297‑30 10421 159‑36 5595 Syed Hasan Bux. _________________________________________________________________________________________ 3758‑10 128080 2442‑35 282853 1315‑15 45228 _________________________________________________________________________________________ The Deputy Land Commissioner has also decided the cases while deter mining their ceiling limit and it is observed that nothing has been resumed from their khatas. 10‑A. It was further examined by me with reference to the documents which were obtained and the position is as under: That statements of Pir Shah alias Bashir Ahmed Shah and others (8 family members), were recorded in book of statement maintained in. Taluka Office. The true copies of statements (Photo copies kept on board) show that these were recorded on 25‑2‑1967 before crucial date i.e. 1‑3‑1967. This seems to be confirmed by entry dated 25‑2‑1967 at page 28 of the Roznamcha of sale of stamps showing that 37 stamps, valuing 0.12 paisas each and 18 valuing 1‑0 each were sold to Ghulam Hussain (Munshi of Bashir Ahmed Shah) and corresponding entry No. 19 dated 25‑7‑1967 in his balance book. Besides entry No. 19 at page 120 in Roznamcha of copying fees maintained in Taluka Office Sakrand, shows that true copies of sale statement were supplied to above de clarants on some date. The true copies of above statement seem to bear the stamps mentioned above. The alienations based on above statements were maintained in V. F.‑XV and were certified by the then Taluka Head Munshi on 19‑3‑1971 before crucial date i.e. 20‑12‑1971. The entries in village Form XV also show that the statements were recorded in book of statements maintained in the Taluka Office.

11. In view of the above, it is clear that complaint of Mr. Hakim Ali Zardari is neither well founded nor based on correct facts which have been verified and scrutinized personally by me.

12. In view of the above position no further action is called for. The matter is placed before the Chief Minister, for his information, as desired by him. Copy of the complaint of Hakim Ali Zardari is also enclosed. (Nusrat Hasan) C. S. P., Chief Land Commissioner, Sind. Through the Revenue Minister. The Chief Minister, Sind." The next phase of the development in the case was that the learned Land Commissioner, Sind initiated suo motu Review proceedings, and after issuing notices to the parties reviewed the earlier order dated 2‑6‑1972 and held, by the order dated 9‑11‑1973, passed in each case separately, that all the alienations involved were male fide, and were made only to circumvent the Land Reforms. The reasons given by him are almost common as shown in the case of petitioner Bibi Mehrun Nisa (Constitutional Petition No. 1151 of 1973). It would, therefore, suffice if the order passed in her case be re produced. It reads as under "This is suo motu review of my order No. 95‑7‑LC/72/356 dated 12‑6‑72 passed by me on the declaration filed by the declarant Bibi Mehrun nisa, whereby I had declared the following alienations by way of sale to be not void under para. 7 of M. L. R. 115 of 1972. Deh. Name to whom gifted out with relationship. Area. 16 1 Azad Ismail. 74‑25 Jamjodho 2 Chibher. 74‑25

4. Bachal 1 Azad Ismail. 14‑05 Rahu 2 Chibher. 14-05

5. Sodho 1 Azad Ismail. 55‑18 Lund. 2 Chibher. Tharo 1 Azad Ismail. 32‑16 Uner. 32-16 _______ Total 297‑30 _______ (2) As it was found necessary to review said order, notices were caused to be issued for hearing on 9‑11‑1973, so that the matter may be heard again and decided on suo motu side by way of review. (3) The declarant was represented by her Munshi Ghularn Hussain Baluch. Alienee Chibber is present in person and the other alienee Azad is represented by his father Ismail Memon. They were explained that there were reasons to doubt that the alienations were khokha and the produce of the land has all along been appropriated by the declarant. The declarant and the alienees were therefore called upon to explain and prove the bona fides of the alienations. (4) Munshi Ghulam Hussain for the declarant stated that the sales were genuine and the alienees were in effective possession of the land. He has no further evidence in this respect except that the declarant already stood divested of the possession of the land and its produce. The alienees also claimed that they were in effective possession of land ,and were appropriating the produce and paying the land revenue. However, the parties failed to produce alienation on the support of statement dated 25‑2‑1967. They stated to be in possession of true .copy of this statement. The Land Reforms Mukhtiarkar said that the book of statement in which the said statement is claimed to have been recorded is missing. In any case, the mutation in the record of rights on the basis of this statement appears to have been effected on 19‑3‑1971 Le. after more than 4 years. The parties could not .explain the cause of this inordinate delay. This has caused serious doubt on the authenticity of all the entries. Moreover, all the sales were not to the extent of entire share of the shareholder, but it was in respect of portion of share. The purchasers do not in any way .claim to be connected with the declarant either by caste or by way of residence or by way of family relationship. Purchaser Chibher is Jalbani Baloch and Azad Memon residing at Sun, District Dadu. There was therefore absolutely no justification to invest huge amounts on an undivided property. Both the purchasers failed to produce even a single receipt of land revenue of any year: In fact, they failed to produce any satisfactory proof in the light of Explanation III of para. 7 of M. L. R.

115. All this leads to only one conclusion that the alienations are male rides only to circumvent the Land Reforms. (5) In view of the above position, I hold that this is a benami transaction where the whole produce is still being enjoyed by the declarant, even though on paper alienations have been effected. I therefore recall my previous order referred to above and declare all the alienations made by way of sale on the basis of statement dated 25‑2‑1967 as void. The Deputy Land Commissioner is authorised to review his previous order and pass fresh orders as required by rule 10(1)(a)(ii) of Sind Land Reforms Rules, 1972." It is in these circumstances that the petitioners have approached this Court for relief. Mr. Khalid Ishaque, the learned counsel for the petitioners, challenged the impugned orders on several scores, including attack on the ground of mala fides. He asserted that the real reason for the reopening of the cases of the petitioners was the unscrupulous pressure exercised by Hakim Ali Zardari, the political opponent of Syed Shabbir Hussain Shah, husband of petitioner Bibi Nasim Akhtar and a close relation of the other petitioners. He explained that Hakim Ali Zardari and Syed Shabbir Husshin Shah had contested the last General Elections for a seat of the National Assembly of Pakistan, and ever since then Hakim Ali Zardari has harboured a grudge against his political rival, and it was he who was responsible for the reopening of the cases of the petitioners. The learned counsel asserted that the fact that the impugned orders were passed in hot haste, without even giving to the petitioners an opportunity of being heard as required under the rules, makes the orders void in law just on that ground alone, but the real reason for this obvious illegality is that the petitioners have been the victims of political pressure. The learned counsel then challenged the powers of review provided by the Sind Land Reforms Rules, 1972 contending that rule 10 is ultra vires of the main Regulation, besides being in excess of the powers actually delegated. He further urged that no fresh facts or documents had been placed before the learned Land Commissioner, Sind there was, therefore, no scope for him in law to review the orders passed by him previously, even if the power of review was available to him in law, conceding this for the sake of argument only. The learned counsel finally contended that the cases of the petitioners had been earlier examined by the Chief Land Commissioner, Sind in exercise of the revisional powers possessed by him, and this fact also placed a total embargo under Proviso `C' to rule 10 on the exercise of the power of review by the Land Commissioner, Sind. The learned Advocate‑General, on the other hand, forcefully supported the action taken against the petitioners. He firstly contended that the petition is not maintainable in law as it seeks to challenge the orders passed by the Land Commissioner, Sind which having been passed in exercise of powers under M. L. R. 115 are immune from judicial scrutiny by any Court in view of the bar contained in Article 281 of the Interim Constitution, 1972. The learned Advocate‑General also relied upon the embargo placed under para graph 26 of the Regulation which excludes the scrutiny of any proceedings under the Regulation by the Courts, including the High Court and the Supreme Court. The learned Advocate‑General also maintained that these petitions are premature for the reason that the petitioners have not exhausted the alternative remedy provided under paragraph 29 of the Regulation by way ‑of Revision Application to the Federal Government. On merits of the case, the learned Advocate‑General took the stand that it would be inappropriate to condemn the learned Land Commissioner, Sind that he had passed the orders under the influence of political pressure from Hafiim Ali Zardari, for this Officer had earlier made Reports in favour of the petitioners, but later on, he found on further examination, that alienations made by the petitioners were void as these were benami transactions, and were made only to circumvent the Land Reforms. As regards the Report made by the learned Chief Land Commissioner, Sind the learned Advocate‑General urged that "it was administrative routine .examination by the Secretariat of respondent No. 3 and it was not an order as contemplated under rule 11 of the Sind Land Reforms Rules, 1972." This contention was made by the learned Advocate‑General on the basis of the assertion made in the Counter‑Affidavit filed in defence of the Writ Petition by Ali Muhammad Abbasi, the Deputy Secretary, Sind Land Com mission, Hyderabad. During the course of the arguments, we pointed out to the learned Advocate‑General that it would not perhaps be correct to say that the Report of the Chief Land Commissioner, Sind was "an administrative routine examination by his Secretariat," for, it is obvious from the bare perusal of the Report itself that it was made to the Chief Minister, Sind pursuant to a marginal note dated 8‑1 1973 recorded by him on‑ the applica tion of Hakim Ali Zardari dated 28‑12‑1972. The question also arose if the Report made by the learned Chief Land Commissioner, Sind amounted to an examination of the cases of the petitioners by the Chief Land Commissioner, Sind in exercise of suo motu Revisional powers under rule

11. The contention raised by Mr. Khalid Ishaque was that after all a detailed examination of the cases took place at the hands of the learned Chief Land Commissioner, Sind and this could not be covered by the provisions of the Regulation which just confer upon him certain administrative functions. If indeed the cases of the petitioners were examined by the learned Chief Land Commissioner, Sind in exercise of Revisional powers vested in him, that fact would serve as a total ‑ bar to their examination by the learned Land Commissioner, Sind in exercise of the powers of review, for, the source which gave him this power itself shuts out the exercise of this power in event of revision having been filed against the same order, by virtue of Proviso (c) to rule

10. Since the learned Advocate‑General was not in possession of the relevant record he sought an adjournment, and produced the files on the following date of hearing. He filed another Affidavit of Ali Ahmed Abbasi, the Deputy Secretary, Sind Land Commission, in which the facts and the circumstances which led the Chief Land Commissioner, Sind to make the Report to the Chief Minister of Sind have been fully explained. According to the record before us and the statements made at the Bar, the relevant. facts are that Hakim Ali Zardari, M. N. A. made a complaint that Syed Hussain Bux Shah and his family members had fraudulently transferred‑ ‑ por tions of their laud holdings in the names of certain bogus persons in order to save their landed property from resumption under the Martial Law Regula tion, and he requested for an impartial enquiry into these cases so that the lands fraudulently preserved be resumed according to law. On this com plaint, the Chief Minister of Sind recorded a marginal `Minute on 8‑1‑1973 as a result of which departmental investigation was started. We may record our observation here that the allegations made against the petitioners were examined in quite a thorough manner, so far as departmental scrutiny can be possible. It transpires from the record that the Deputy Land Commissioner,. Nawabshah made a Report to the Land Commissioner, Sind under Memo. No. L R No. 42/73 dated 10‑1‑1973 in favour of the petitioners explaining the circumstances in which the mutations were effected in the Record‑of‑Rights. In spite of this a further querry was made by the Land Commissioner, Sind from the Deputy Land Commissioner, Nawabshah under letter No. NCS‑7 EAN/73‑239 dated 12‑1‑

73. This letter does not appear on the files produced before us, but it is, however, clear from among other papers that the Deputy Land Commissioner, Nawabsbah was asked to clarify the following points, after visiting the site: (1) Whether the purchasers are actually in possession of the land sold by the above declarants; if so, since when and whether the new purchasers are actually on the site or not? (2) Whether the transactions made by all the declarants are bona fide or otherwise? (3) Who is paying the land revenue and other charges in respect of the land sold? (4) Who is receiving the rent or Batai share from the rented lands? pursuant to this, the Deputy Land Commissioner made the following Report : Memo No. LR/120 of 1973‑Nawabshah dated 2‑2‑1973. Subject: Complaint against Syed Hassan Bux Shah for escaping the effect of Land Reforms. Reference.‑Your letter No. LCS‑7‑Gen/73‑239 dated 12‑1‑73. . I visited the sites in respect of the holding of all the declarants situated in various deks of Taluka Sakrand on 23‑1‑1973. I have recorded the statements of Purchasers namely (1) Azad son of Mohammad Ismail, (2) Chibhar Khan Jalbani, (3) Abdul Razzak Memon, (4) Siddik son of Gul Mohammad Dahri, (5) Mohammad Saleh Meinon, (6) Abdul Gbaffar Meinon, (7) Haji Mohammad Memon, (8) Abdul Latif Memon, (9) Mohammad Ibrahim Memon, (10) Moso Memon and Dadu Memon. The statements in all (9) are enclosed. All the purchasers stated that they had purchased lands from the de clarants on 25‑2‑1967 and since then they had been in possession of the area purchased by them and they themselves look after their respective shares in the lands and live on the site for the purpose. According to them they themselves do the Batai and enjoy their respective Zamindari share and that they regularly pay the land revenue etc. in respect of the shares purchased by them to the Mukh Khatedars, who after including their own share of land revenue pay to the Government and therefore the Land Revenue Receipts are issued in the name of "Mukh" Khatedars. My findings are as under:‑ (i) As regards physical possession of the land sold by the declarants, it was observed that no private partition of the land appears to have been made by the co‑sharers for the purpose of separate cultivation of the area coming in their share though the alienees are available at the site. It was further revealed that the new purchasers, who are most of them strangers except few are not connected with the declarants that they are cultivating the land jointly and appropriating produce pro portionate to their respective shares. (ii) Since the purchasers have themselves admitted that they had pur chased shares from the declarants on 25‑2‑1967 and since then they are in possession of the purchased share and enjoying produce etc. proportionate to their respective shares, it is hard to presume that the transaction was not bona fide. (iii) The Land Revenue in respect of the alienated area is being credited by the declarants in a capacity of main Kbatedars as the alienees had purchased shares in the holdings and they all are co‑sharers. (vi) Discussed at (i). incidentally, the purchaser, Abdul Ghaffar has produced an attested copy of registered deed, which reveals that he along with co‑sharers Mst. Amnat and the declarant Bibi Khanzadi had jointly sold out an area of 6.36 acres of land to one Dhani Parto on 19‑6‑

71. The attested copy of the deed is also enclosed for the perusal which itself speaks of the bona fide transaction. It is further pointed out that the allegations that Syed Hassan Bux Shah and his family had managed to save their land from First Land Reforms are not correct. This Office record shows that the land as detailed below was resumed from the Khatas of Syed Hassan Bux Shah and Syed Bashir Ahmed Shah in the First Land Reforms, 1959:‑ Name of Khatedar Area assumed P. I. Units.

1. Syed Hassan Bux Shah 588.02 20582

2. Syed Pir Shah alias 79.22 2787 Bashir Ahmed Shah. On receipt of this Report, the Land Commissioner, Sind addressed letter No. 108‑7‑LC/72‑1066 dated 15th March 1973 to the Chief Land Commissioner, Sind in which he exhaustively dealt with the facts of the case and pointed out the result of the departmental investigation into all the allegations levelled against the petitioners, He concluded the letter as follows:‑ "The Deputy Land Commissioner has further pointed out that the allegations that Syed Hassan Bux Shah and his family had managed to save their land from First Land Reforms are not correct. As the record of his office shows that the land as detailed below was resumed from the khatas of Syed Hassan Bux Shah and Syed Bashir Ahmed Shah in the First Land Reforms, 1959:‑ Name of Khatedar. Area resumed. P. I. Units.

1. Syed Hassan Bux Shah 588‑02 20582

2. Syed Pir Shah alias 79‑22 2728 Bashir Ahmed Shah. It may be submitted that out of the above cases, the cases of Syed Pir Shah alias Bashir Ahmed Shah and Bibi Mehrunnisa were sent for along with relevant record i.e. book of statements etc. by the C. L. O. Sind, Hyderabad vide letter No. SLC‑124/72/2375 dated 27‑7‑72 and No. SIC‑127/72‑2548 dated 4‑8‑1912, in order to scrutinize the alienations confirmed by the Land Commissioner, Sind, Hyderabad vide order No. 108‑7‑IC/ 12‑357, dated 12‑6‑72 and No. 95‑7‑LC/72‑356 dated 12‑6‑1972. The above cases after scrutiny have now been filed and the order of confirmation of alienations passed by the Land Commissioner, Sind, Hyderabad has been maintained by the Chief Land Commissioner, Sind, Hyderabad under his No. SLC‑125/12‑564 dated 6‑2‑1973 and No. SLC‑127/71‑563, dated 6‑2‑1973. In view of the above facts, orders as deemed fit may kindly be passed in the matter." It appears that yet another probe was considered necessary. The departmental files show that the Chief Land Commissioner, Sind addressed the following letter directly to the Mukhtiarkar, Sakrand: Phone No. 25443. No. SLC‑348/73/3223 Land Reforms Sind Land Commission, TOP Priority. Hyderabad dated 20‑6‑1973, From: Mr. Nusrat Hassan, CSP., Chief Land Commissioner, Sind. To:‑ The Mukhtiarkar, Sakrand. Subject: Complaint against Syed Hassan Bux Shah son of Parial Shah of Taluka Sukrand, District Nawabshah for escaping the effect of Land Reforms. I am directed to inform you, that Chief Land Commissioner, Sind has been pleased to order the Deputy Secretary II, Sind Land Commission to scrutinize the following record of your office. You are therefore required to keep them handy in your office on 25‑6‑1973 for his inspection (1) True copies of statements dated 25‑2‑1967 of Syed Pir Shah alias Bashir Ahmed Shah and his other family members regarding alienations of their lands in Tapa Mehrabpur. (2) Applications submitted by them for obtaining above true copies. (3) Register of copying fees of that period. (4) Roznamcha of the stamp‑vendor pertaining to that period, from whom stamps for application and true copies were purchased by above declarants. (5) Village Forms VII of all the dehs of Tapa Mehrabpur showing entries from 7‑10‑1958 to 23‑5‑1967. (6) Whether Book of statements of Tapa Mehrabpur has been lost and any action has been taken in that connection and correspondence relating thereto. (7) Whether any Book of statements was maintained in Taluka office on 25‑2‑1967 and whether it is available and if not what action has been taken about its loss. How far is it true that said statements of above declarants were recorded in above Book of statements maintained in Taluka office and any correspondence about loss of above book. (8) Whether and when mutation fees of above alienations have been recovered.

2. As regards true copies of statements shown at sub‑para. 1, Syed Bashir Ahmed Shah may be served, to produce their statements at Sakrand on 25‑6‑1973. (Sd.) (Abdullah D. Baloch) PCS., Secretary, Sind Land Commission. No. SLC‑348/73/4224 Hyderabad dated 29‑6‑1973. Copy forwarded with compliments to the Deputy Land Commissioner, Nawabshah for information. The Mukhtiarkar, Sakrand should be directed to keep the above record handy for scrutiny by Deputy Secretary, Sind Land Commission. (Sd.) Secretary, Sind Land Commission This letter resulted in the following reply from the Mukhtiarkar, Sakrand: No. IR/1318 of 1973 Sakrand dated 27‑6‑1973. To The Deputy Land Commissioner, Nawabshah. Subject: Complaint against Hassan Bux Shah son of Parial Shah of Taluka Sakrand, District Nawabshah for escaping the effect of Land Reforms. Reference: Letter No. SLC‑348/73/3223 dated 20‑6‑1973 from Chief Land Commissioner, Sind, addressed to this Office, copy endorsed to you. . Para. No. Comments. 1 & 7.‑The true copies of the statements dated 25‑2‑1967 of Syed Pir Shah alias Bashir Ahmed Shah and his other 8 family members regarding alienations of their lands in Tapa Mehrabpur and others were personally produced by their agent Ghulam Hussain in presence of Deputy Secretary No. II Land Commission. Their perusal showed that these statements were recorded on 25‑2‑1967 in the Taluka Book of statements by Mr. Shah Nawazujan the then Taluka Head Munshi Sakrand on the strength of which Mutation entries were maintained in Village Form XV which were verified on 19‑3‑1971 by Mr. Abdul Qadir Ansari Head Munshi Sakrand who verified the same in the capacity of Circle Officer Gahram Mari. Perusal of the mutation entries in Village Form XV also confirms that these statements were recorded in the book of statements maintained in Taluka Office. As regards loss of above book of statements of Taluka the matter was already reported under this Office letter No. HM/1973 dated 22‑6‑1972, which was communi cated to Land Commission authorities accordingly. There is no correspon dence traceable in Taluka Office to show as to when this book was lost and who is responsible for the loss. However it was not received in charge by Taluka Head Munshi on 27‑3‑1970 from his predecessor Mr. Mohammad Hayat Bughio, now retired Mukhtiarkar resident of Gharibabad Nawabshah, as verified from the charge card register available in Taluka, Office. 2 & 3.‑Application submitted by Syed Bashir Ahmed Shah and others for true copies on 25‑2‑1967 are not traceable. However, entry at page 120 in Roznamcha for copying fees shows that Syed Bashir Ahmed Shan and his other 8 family members were supplied copies on 25‑2‑1967 and also recovery of copying fee made thereof. Roznamcha in original is enclosed. Para. 4‑The entries on back of leaf 28 of Roznamcha of stamp vendor Sharifuddin and his balance book on page 19 show that their agent (Munshi Ghulam Hussain) had purchased stamps on 25‑2‑1967 for the applications and copying fee charges. Thus, this also confirms that statements for aliena tions were recorded on 25‑2‑1967 and on the same day they have been supplied the copies. The stamps affixed on the true copies also bear the name of Ghulam Hussain. Both the above books are enclosed. 5 & 6.‑True copies of the alienations made in Village Form VII on the strength of some statements recorded in the old book of statements of Tapa Mehrabpur from 7‑10‑58 to 23‑5‑1967 now received by Land Commission authorities from Ahmed Bux Zardari are enclosed. This shows that this is valid book of statements of Tapa Mehrabpur. There is nothing on the record to show as to when this book was lost and who is responsible for this, However this book of statements has no concern whatsoever with the state ments of Syed Bashir Ahmed Shah and others discussed in para. 1 above.

8. The Mutation fees are still in arrears against them. The record shows that Serial Nos. 346 and 5 of deh Madd Taluka Sakrand purchased from the above declarants have also been sold by registered deed on 23‑6‑1971 to Dhani Parto Khoso. Attested copy of registered deed and copy of entry No. 40 of Village Form KV of deh Madd are enclosed. This also confirms that the alienations have taken place before 20‑12‑1971. However matter regarding loss of statements book of Tapa Mehrabpur and the otter mentioned in Taluka Office is being investigated to locate the responsibility and action will be taken against the delinquent. (Sd.) Aftab Ahmed Siddiqui, Mukhtiarkar, Sakrand. Copy submitted to the Deputy Secretary, Land Commission with reference to above letter for information and record. No. LR/2270 of 1973 Nawabshah dated 27‑6‑1973. Passed on with compliments to the Secretary, Sind Land Commission, Hyderabad. The report of the Mukhtiarkar Sakrand is self‑explanatory and does not require any further comments. (Sd.) Maqsood Ahmed Shaikh, PCS., Deputy Land Commissioner, Nawabshah. It was in these circumstances that the Chief Land Commissioner, Sind made the Report dated 20‑8‑1973 to the Chief Minister of Sind, which has been reproduced earlier, in extenso. The departmental files show that the Report made by the Chief Land Commissioner, Sind was examined in the 9th meeting of the Sind Land Commission, held on 4‑11‑1973. The decision taken in this meeting was recorded in these words: Addl. Item No. I Complaint of Mr. Hakim Ali Zardari against the family of Syed Hasan Bux Shah of Nawabshah. Decision: The Chief Minister/Chairman, Sind Land Commission stated that Mr. Hakim Ali Zardari had moved the Prime Minister of Pakistan that there has been bungling in the alienations disclosed by the members of family of Syed Hasan Bux Shah of Nawabshah and these alienations were in order to circumvent the Land Reforms. In the result, this family has not been affected by the Land Reforms even though thousands of acres of land are still intact in the family and they are enjoying the produce at the cost of the Haris. The Chief Minister/Chairman therefore desired that thorough probe be made once again, and action taken accordingly to law. The Revenue Minister also endorsed the views of the Chief Minister/Chairman, Sind Land Commission. The Chief Land Commissioner was, therefore, directed to take up the matter at once and report action taken in the matter within a week.‑ ‑ ‑ Admittedly the Chief Land Commissioner, Sind did not personally deal with the case and it was the Land Commissioner, Sind who did so in the exercise of powers conferred upon him under rule 10 by which he could review the orders previously passed by him in these cases. In the affidavit filed by Ali Ahmed Abbasi, Deputy Secretary Sind Land Commission, Hyderabad the action is supported in these words:‑ Since in this matter the original orders were passed by the Land Commis sioner and he has the power of Review under the Rules. the Chief Land Commissioner desired that the Land Commissioner, Sind should look into the matter. This was also in the interest of the affected parties as this would have had the right of appeal against the orders passed by the Land Commissioner to the Chief Land Commissioner. It is further asserted by Mr. Ali Ahmed Abbasi in his affidavit that the decision of the Sind Land Commission referred to above is in accordance with the policy according to which it is only the Chief Land Commissioner, Sind who is addressed in all the Land Reforms as it is he, who is res ponsible for the implementation of the Land Reforms, but the Chief Land Commissioner on his part can direct any officer subordinate to him to take up the matter for further compliance.". The following departmental "noting" recorded after the impugned orders were passed by the Land Commissioner, Sind is also revealing, and may be usefully reproduced: "It seems that Secretary, Sind Land Commission, who is also the Land Commissioner of the Province being available in the above said meeting was desired to re‑examine the orders passed by him under paragraph 7 of M. L. R.

115. Hence the Land Commissioner has heard these eight cases on 9‑11‑1973 and reviewed his previous orders, under his suo motu powers, while holding all the alienations as void. It is also under stood that the Land Commissioner ‑has informed the Chief Minister/ Chairman, Sind Land Commission about the above said action. The Land Commissioner bas also sent copies of the above said orders dated 9‑11‑1973 to this Secretariat which have been placed in the relevant files and examined under the provisions of rule 11 of the Sind Land Reforms Rules, 1972, and have been filed with the remarks that no further action is called for in respect thereto, in this Secretariat." The file also contains the following letter addressed to the Chief Minister, Government of Sind, Karachi: Secret. No. 3748 Office of the Deputy Land Commissioner, Nawabshah dated 15‑11‑1973. To The Chief Minister, Government of Sind, Chief Minister's Secretariat, Karachi. Subject: Land resumed from the khatas of Syed Pir Shah alias Bashir Ahmed Shah and 7 others of Taluka Sakrand. Sir, I have reviewed all the eight cases on 14‑11‑1973 in the light of the orders passed by the Land Commissioner Sind, Hyderabad declaring all the alienations as void and have passed fresh orders as required by rule 10(i)(a)(ii) of the Sind Land Reforms Rules, 1972 (copies of the orders along with the extract are enclosed herewith for kind perusal). The area resumed by Government free of cost is shown against each of the declarant. Name of declarant. Area resumed

1. Syed Pir Shah alias Bashir Ahmed Shah 78‑25

2. Syed Mohmud Ahmad Shah son of Shabir Ahmed Shah 74‑05

3. Bibi Nasim Akhtar w/o Shabir Ahmed Shah 16‑00

4. Bibi Fatma d/o Hasan Bux Shah 54‑28

5. Bibi Khanzadi w/o 46‑29

6. Bibi Qamar Nisa d/o 21‑06

7. Bibi Mehrun Nisa d/o ,, 50‑03

8. Bibi Allah Rakhi d/o Syed Pir Shah Nil. ________ Total 341‑14 ________ It may further be submitted that the land will be disposed of in open katchery by the Assistant Land Commissioner, Moro on 16‑11‑1973 to the deserving Harts and further report will be submitted after the disposal work is completed. (Sd.) Maqsood Ahmed Sheikh, Deputy Land Commissioner, Nawabshah. Copy to Secretary, Sind Land Commissioner, Hyderabad for information. It would be clear from above that the learned Land Commissioner, Sind finalised the action initiated by him in suo motu exercise of review powers within just a matter of 5 days between 4‑11‑1973 and 9‑11‑1973. Except for the five petitioners named above, notice to no other petitioner was issued. Even to these five petitioners it cannot be said that a reasonable notice of being heard in terms of rule 10 was given, for, all these petitioners reside in village Mehrabpur, Taluka Sakrand in District Nawabshah, and the hearing of their cases was to take place at Hyderabad. We have already held in the case of '`Shah Mardan Shah II and others v. The Chief Land Commissioner, Sind and others" (Constitutional Petition No. 278 of 19 73) that notice under rule 10 of the Sind Land Reforms Rules, 1974 is required to be given also to the person in whose favour an alienation of land has been approved before the power of review is to be exercised in the manner as to adversely affect his rights in property. It is the admitted position in these cases that the petitioners in whose favour the alienations bf lands had been approved by the order dated 2‑6‑72 were not heard before the impugned orders were passed, and these no doubt adversely affected their valuable rights in property. On this short ground alone the impugned orders passed by the learned Land Commissioner, Sind dated 9‑11‑73 are totally void in law and must be quashed. We, however, would not like to part with these cases without pointing out certain peculiar features and making observations in their regard. It would be seen that the learned Land Commissioner, Sind had not only dealt with these cases in his capacity as Land Commis sioner, Sind, but he remained closely associated with the departmental investi gation conducted in these cases in his capacity as the Secretary, Sind Land Commission. All along during the course of these long‑drawn departmental investigations he took the view that no probe into these cases was necessary and the order passed by him on 2‑6‑1972 required no variation. Surprising, however, after the Meeting of the Sind Land Commission hold at Karachi on 4‑11‑1973 at 5‑30 p.m. he took just the contrary position in the impugned orders passed by him on 9‑11‑1973. He then immediately reported the action taken by him to the officers in the higher hierarchy. It is crystal clear that he recalled his previous orders in such a haste as if it was his bounden duty to do so. We, however, wish to make it absolutely clear that we do not mean to comment upon the decision taken by Sind Land Commission in the meeting held on 4‑11‑1973, rather on the view we have taken in these cases, we are of the opinion that this decision calls for no interference for the reasons which would be presently mentioned. The impugned orders passed by the learned Land Commissioner, Sind, however, would just the same be void in law, if it is shown that he passed these orders considering that he was expected to achieve certain results or if he did so for the reason of showing dramatic results. It has been emphasised by the superior Courts in Pakistan, from time to time, that the exercise of statutory power is invalid unless the repository of the power has acted honestly, and in good faith. The deliberate promotion of a purpose, be it public or private, alien to that for which the power was conferred is to be regarded as an act of bad faith. It was held by the House of Lords in Padfield v. Minister of Agriculture ((1968) 1 All E R 691) that where a prima facie case of misuse of power has been made out, it is open to a Court to draw the inference that unauthorised purposes have been pursued, if the competent authority fails to adduce any ground supporting the validity of his conduct. It cannot be over‑emphasised that the Tribunals dealing with the rights guaranteed by the Constitution must, always, exercise the discretionary powers fairly, not capriciously, and in good faith. The only purposes which they are to achieve are those for which the powers are granted, and the exercise of the powers must be within the limits of the Act or the instrument conferring the power. Their conduct must also imply that all the relevant considerations were taken into account, and the extraneous considerations were disregarded. We regret that these principles were thrown to the winds by the learned Land Commissioner, Sind after he chose to review the orders previously passed by him in these cases. As to the contentions raised by the learned Advocate‑General regarding the scope of interference by this Court in exercise of its constitutional juris diction, we have already dealt with these questions at great length in the cases of Pir Shah Mardan Shah II v. Chief Land Commissioner, Sind (Constitutional Petitton No. 278 of 1973), Mir Haji Ali Ahmed Khan v. Government of Sind and others (Constitutional Petition No. 265 of 1974), Mst. Fatma v. Government of Pakistan and others (Constitutional Petition No. 618 of 1972) etc. We need not, therefore, repeat what we have observed earlier. In the case of Pir Shah Mardan Shah 11 and others v. The Chief' Land Com missioner, Sind and others (Constitutional Petition No. 278 of 1973) we have upheld the vires of rule 10 of the Sind Land Reform Rules, 1972. We also see no reason to depart from what we have already held on this score. On the view we have taken of these cases, the impugned orders passed by the learned Land Commissioner, Hyderabad, in each case, on 9‑11‑1963 are quashed, and these petitions are allowed with costs. The decision taken by the Sind Land Commission in the meeting held on 4‑11‑1973 in respect of these cases was not challenged before us, and even otherwise in view of all pervading powers conferred on the Land Commission under paragraph 4(3) of the Regulation, we see no justification, whatever, for interfering with it. We wish, therefore, to make it clear that it will be open to the Sind Land Commission to take action in these cases, if so desired, according to law. S. A. H. Petition allowed.