1983 PLP 2842 (CLC)

KHIZAR HAYAT, J.-In both the Constitutional petitions (W. P. No, 2552/1975 by Sardar Hafizur Rahman Khan alias 1fafiz Ullah and W. P. 2553,11975 by Sardar Azizur Rabman and Mst. Ghulam Zakia Bibi) it has been prayed that tile order dated 3rd July, 1975 passed by the learned Member, Federal Land Commission respondent No. 1, be declared to have been passed without lawful authority and of no legal effect. These petitions arise out of the same order, therefore, these are being disposed of by this single judgment.

2. The relevant facts briefly are that Sardar Hafizur Rahman Khan alias Hafiz Ullah owned land in various villages. In the year 1969 he exchanged land measuring 1307 Kanals 10 Marlas situated in village Gulluwali and another piece of land measuring 1224 Kanals 9 Marlas situated in village Bhag with a house known as Darishak Mahal situated in Shahr Nindo Khan owned by Sardar Azizur Rahman, his brother respondent No. 2 and 31st, Ghulam Zakia Bibi his sister respondent No. 3 (petitioners in W. P. No. 2 of 1975). Two separate mutations i.e. No. 4 dated 19th February, 1969 in Gulluwali and No. 610 dated 25th February, 1969 in village Bhag were consequently sanctioned. Sardar Azizur Rahman and Mst. Ghulam Zakia Bibi further exchanged the land obtained by them from Hafizur Rahman with the land of their sisters, namely, Mst. Zubadia Khatoon and Mst. Mumtaz Khatoon (respondents Nos. 4 and 5 in W. P. No. 2552) situated in village Bhag in District Dera Ghazi Khan and village Isran in District Multan vide mutations No. 10 dated 4th January, 1971 and No. 13 dated 5th February, 1971.

3. Following the promulgation of Land Reforms Regulation, 1972 (hereinafter called the Regulation Sardar Hafizur Rahman Khan submitted a declaration wherein the aforesaid transactions of exchange were mentioned. The declaration was accepted by the Deputy Land Commissioner, but Land Commissioner, i49ultan Division, having taken up the matter sun motu vide his order dated 14th June, 1972 held the transactions as in genuine and void for they were hit by explanation of paragraph 7(1)(b) of the Regulation. The petitioner filed an appeal before the Chief Land Commissioner. _ Meanwhile an amendment was made in Martial Law Regulation No. 115 vide Punjab Amendment Ordinance XX of 1972 in pursuance whereof the aforesaid appeal was taken up by Land Com missioner for Review proceedings. As a result of the review, the Land Commissioner upheld his previous order observing that the declarant Sardar Hafizur Rahman Khan in exchange of his land obtained a residen tial site which is not included in the definition of "land" and also because parties were minors, therefore, the transactions seemed to be highly doubtful. Being aggrieved, the declarant preferred appeal to the Chief Land Commissioner which was accepted by Additional Chief Land Com missioner on 27th September, 1973 with following observation :- "This transaction took place in 1969. It is also proved that the declarant got some property of higher value in exchange of his land and thus he received adequate consideration for the land that he trans ferred. The transaction, therefore, appears to be bona fide transaction. "

4. Thereafter an inspection team scrutinized the aforementioned mutations in the year 1975 and reported that the transactions were mala fide and that the declarant should surrender an area equivalent to 5106 P. I. Units. On the basis of this report, respondent No. 1 issued notices to the parties obviously acting under paragraph 29 of the Regulation and after hearing them remarked that ever if it was assumed that the transac tion of exchange took place yet the same cannot be accepted as legal, firstly, because the natural guardian (the father) who exchanged the land on behalf of the minors did state at the time of the attestation of muta tions, that the exchanges he made on behalf of the minors were in 'their benefit; and secondly, because a brother gave property in exchange on one hand and two minors (brother and sister) received the property on the other hand. Therefore, he held the transactions as void. Feeling aggrieved by this order, the instant petitions have been filed.

5. We have heard the learned counsel for the petitioners as well as the learned counsel appearing on behalf of Federal Land Commission and also perused the record.

6. Because the transactions of exchange in question took place after 1st March, 1967, therefore, bona fides of these transaction could be legally gone into by the authorities under paragraph 7(1)(b) of the Regulation. In order to reach a conclusion that a particular transaction is bona fide or otherwise, the tests which ought to be applied are given in explanation III of paragraph 7 of the Regulation which may be repro duced for convenience of reference. Explanation 111.-In determining whether a transaction referred to in clause (b) of paragraph (1) was bona fide or otherwise, the Com missioner shall, among other matters take into consideration the following factors:- (1) Whether adequate consideration had been paid by or on behalf of the person in whose favour the transfer has been made on any right, interest or encumbrance has been created ; (ii) under whose management the land has remained which is claimed to have been transferred or in respect of which arty right, in terest or encumbrance has been created ; (iii) who has been paying the land revenue and other charges in res pect of such land; (iv) who has been receiving the rent for or Batai share from such land. (2) (3)

7. The impugned order shows that none of the tests enumerated above were applied by the respondent No. 1 while considering bona ;des of the exchange transactions in question . From trend of his order it appears that since the father of the petitioner did not make the statement to the effect that he accepted the exchange as guardian of the minors and for their benefit, therefore, he found the transaction illegal, hence void. . It is remarkable that respondent No. 1 has not declared the transaction as "not bona fide." We are not aware of a ay provision of law that if such an expression by a natural guardian., whale alienating the property of the minor, fails to state that the same is in the interest of minors, such omission would by itself render the transaction illegal. It is true that in such situation the alienation by a guardian may not be binding on the minor if the latter shows that the same was not in his benefit. In para graph 7 (1)(b) the Legislators in their wisdom have used the words 'legal or otherwise". We understand that all legal. transactions are presumed to be bona fade transactions but all the bona fide transactions are not neces sarily legal. The word "bona fide" connotes good faith; sincerely; without fraud and deceit. In the instant case: the transactions of exchange took place in the year 1969 and thereafter were acted upon and also in corporate in the relevant revenue records. Certain interpolations found in mutation No. 4 by the learned Member, Federal Land Commission, were ignored by him which means that he, did not consider those inter polations sufficient enough to hold the mutation as in genuine or mala fide on that score. We also find that the declarant Sardar Hafizur Rahman Khan the petitioner, has since attained majority yet he did not protest that the transaction in question was not in his benefit. In any case the mere' fact that his guardian did not state at the time of attestation of mutation that the "exchange was for the benefit of minor" does not detract from its validity. There is no finding by respondent No. 1 whatsoever that the house taken in exchange for the land of declarant was of inadequate con sideration, or the management of the lard transferred to respondents Nos. 3 and 4 remained with the declarant or that its land revenue and the Batai share was being received by the declarant. Be that as it may, the fact remains that respondent No. 1 has not found the transactions as "Not bona fide". Resultantly, the transactions could not be in our view declared void by respondent No. 1 and the impugned order is thus violative of the provisions of paragraph 7(1),(b) of the Regulation.

8. For what has been stated above the impugned order is declared, to have been passed without lawful authority and hence of no legal effect. Parties are, left to bear their own costs, M. Y. H. Petition accepted.