1996 PLP 167 (CLC)

RIAZ HUSSAIN J.‑‑‑This judgment will dispose of Writ Petitions Nos.1972 of 1979, 1973 of 1979 and Writ Petition No. 1974 of 1979 as a common question of law is involved therein. Facts of Writ Petition No. 1972/1979:

2. The factual background of this writ petition is that petitioner No. 1 being owner of land in Mauza Kotli Abdul Fateh, Tehsil and District Multan, proceeded to conclude four mutations of Tamleek the details whereof are given hereunder:‑. Muta Kind Date of Aliener Alienee Area PIUS. tion No. attestation A.K.M

83. Tamleek 10‑5‑1969 Maqbool Ashiq 187.0.8 11558 Hussain Hussain Shahnaz Bano 70.2.3. 4353 Begum. 135. 21‑9‑1971 Ashiq Hussain 39.4.15. 2370 Riaz Hussain 39.4.15. 2370

136. Sahnaz Bano 42.5.6. 2673 Begum

3. The abovesaid alienations by way of Tamleek were declared to be void by the Land Commissioner, Multan, vide his order dated 8‑6‑1972.

4. The petitioner preferred a Review Petition against this order and the Land Commissioner Multan vide his order 18‑11‑1972 partially accepted the same thereby declaring Mutations Nos. 86 and 136 in favour of Shahnaz Bano Begum, the petitioner No. 4, to be valid for the reason that she had not received her due share of inheritance but maintained his previous order in respect of Mutations Nos. 83 and 135 whereby the same were declared to be void.

5. The abovesaid order on Review Petition was challenged in appeal, which was heard and decided by the Additional Chief Land Commissioner, Punjab, Lahore, who vide his order dated 20‑9‑1973 validated Mutation No. 135 and also observed that it would be of no use to declare Mutation No. 83 as invalid because the total holding of petitioner No. 1 remained below permissible limit i.e. 12,000 PIUS. Consequently, no land was resumed from the petitioner under the Land Reforms Regulation, 1972,

6. It was, however, on the basis of objection raised by the Inspection Team, Federal Land Commission, Multan Division that a notice was issued to the petitioner calling upon him to show cause as to why alienation noted above be not ‑ declared as void. The petitioner did appear before the Member Inspection Team but no proceedings were taken in his presence and he was told that if need be, he would be summoned subsequently. Meanwhile it so happened that on 9‑1‑1977 the Land Reforms Act of 1977 (Act II of 1977) was promulgated and by virtue of section 25 of this Act, all proceedings pending before the Federal Land Commission were declared to have abated.

7. It was in these circumstances, that on 23‑9‑1978, the Government of Pakistan/respondent No. 3 issued a Notification bearing No. R‑1972/LR‑1/78 whereby it was notified that the proceedings in the cases under para. 29 of the Land Reforms Regulation, 1972 pending before the Federal Land Commission, on the commencement of the said Act shall not stand abated. It was in consequence thereof that the Federal Land Commission in suo Motu exercise of its jurisdiction under para, 29 of the Land Reforms Regulation, 1972 issued a notice for the scrutiny of the abovesaid transactions and declared all the abovesaid four transactions to be void vide its order dated 3‑1‑1979. The said order is assailed in the present writ petition. Facts of Writ Petition No. 1973/1979:

8. The petitioner No. 1 transferred 35 Acres, 2 Kanals and 15 Marlas in favour of Maqbool Hussain and Riaz Hussain vide Mutation No. 132 dated 21‑9‑1971. He also transferred 45 acres, 0 Kanals and 17 Marlas in favour of Shahnaz Bano Begum vide Mutation No. 133 dated 21‑9‑1971. Both the mutations were attested on 21‑9‑1971, which related to the area of village Kotli Abdul Fateh, Tehsil and District Multan.

9. The other facts of this writ petition are same as have been detailed in Writ Petition No. 1972 of 1979 with the exception that in this writ petition Mutations Nos. 132 and 133 were declared void. Facts of W.P. No. 1974 of 1979:

10. The relevant facts are that Riaz Hussain petitioner No. 1 being owner of land in Kotli Abdul Fateh, Tehsil and District Multan proceeded to make four mutations of Tamleek, details whereof are given hereunder:‑‑ Mutation Kind Date of Aliener Alienee Area PIUs No. attestation.

84. Tamleek 10‑5‑69 Riaz Ashiq 3.4.17 228 Hussain Hussain (brother) 88 Maqbool 169.3.13 10804 Hussain (brother) 137 21‑9‑71 Maqbool 41.6.01 2551 Hussain Ashiq Hussain (brothers) 138 Shahnaz 37.4.14 2351 Bano Begum (sister)

11. The abovesaid transactions were, however, declared to be void by the Land Commissioner, Multan, vide his order dated 18‑11‑1972.

12. The petitioner preferred an appeal against the abovesaid order which was heard and determined by the Additional Chief Land Commissioner, Punjab, Lahore who vide his order dated 20‑9‑1973 declared Mutation No. 137 to be valid while Mutations Nos. 84 and 88 were declared to be void. It so happened that subsequently the Punjab Land Commissioner issued Notification on 23‑1‑1974 thereby directing that a gift made by a sister in favour of a brother or by a brother in favour of another brother, who might not have received due share of inheritance of ancestral land shall be accepted by the Land Commission as being in order. It was on the basis of this Notification that Land Commissioner Multan, validated Mutations Nos. 84 and 88 also vide his order dated 23‑10‑1974. The result was that all the four alienations referred to above were declared to be valid by the Land Commission.

13. Subsequently on the basis of report of the Inspection Team, Federal Land Commission, Multan Division a notice was issued to petitioner No.l thereby calling upon him to show cause as to why the said alienation be not declared as void. The petitioner did appear before the Member, Federal Land Commission but was told that if need be, he would be summoned again. It so happened that on 9‑1‑1977, the Land Reforms Act, 1977 (Act 11 of 1977) came into force and by virtue of section 25 of that Act all proceedings pending before the Federal Land Commission stood abated.

14. On 23‑9‑1978, the Government of Pakistan respondent No. 3, issued a Notification No. II‑1977/LR‑1/78 whereby it was notified that the proceedings in cases under paragraph 29 of the Land Reforms Regulation, 1972 pending before the Federal Land Commission on the commencement of the said Act shall not stand abated.

15. It was, thereafter, that the Federal Land Commission in suo motu exercise of its revisional para.29 of the said Land Reforms Regulation, 1972, issued a notice for further scrutiny of the cases and on 3‑1‑1979 declared all the four transactions to be void. The abovesaid order of the Federal Land Commission is assailed in the present writ petition.

16. The learned counsel for the petitioner, while relying on the provisions contained in para. 25 of the Land Reforms Ordinance, 1977 submitted that the proceedings pending before the Federal Land Commission stood automatically abated with the promulgation of the said Ordinance and the intention thereof could not be set at naught by the Government of Pakistan by issuing a Notification. The precise submission is to the effect that the provision of an Act could not be rendered nugatory by invoking the rule‑making power muchless by issuing a Notification by the Government. Reliance has been placed on the Federal Land Commission through its Senior Member, Islamabad. Shair Muhammad and others (PLD 1990 SC 626) whereby the abovesaid notification has already been declared to be ultra vires and of no legal effect. The matter has already been set at rest by the judgment of the Supreme Court referred to above.

17. Since the Hon'ble Supreme Court has already declared the aforesaid Notification dated 23‑9‑1978 to be ultra vires of the powers of Federal Government and of no legal effect, the Senior Member, Land Commission had no lawful authority to reopen the past and closed matter particularly when the proceedings pending before him stood abated with the promulgation of Land Reforms Ordinance, 1977. This writ petition is, therefore, accepted and the order dated 3‑1‑1979 passed by the Senior Member, Federal Land Commission is declared to have been passed without lawful authority and of no legal effect. The parties are left to bear their own costs. AA./M‑2592/L Petition accepted.