1983 PLP 834 (SCMR)

Nemo for Respondents. Date of hearing: l0th January, 1978, MUHAMMAD HALEEM, J.‑This order will govern Civil Petitions Nos. 117‑R and 118‑R of 1977, ‑which are directed against the common judgment of the Peshawar High Court dated 25th of February, 1977. The Member, Federal Land Commission is the petitioner in both the petitions. The first respondent in C. P. 117‑R of 1977, was a civil servant and had purchased 4730 Kanals of land which area was increased to 4789 Kanals as a result of the "consolidation operations". After retirement he purchased another 73 Kanals and 16 Marlas. The land is situate in village Chehkan, District D. I. Khan. In regard to these purchases, Mutation Nos. 3035 and 29 were respectively attested on 20th of June, 1968, and 18th of February, 1971. The first respondent retired from service on 15th of December, 1970. It may here be mentioned that he had sold some of his inherited land situate in District Kohat and only 34 Kanals and 4 Marlas were left with him. By Mutation No. 3348 which was attested on 30th of October, 1969, he transferred to his daughter‑in‑law, Mst. Naseem Aurangzeb, a non‑legal heir, 1197 Kanals and 10 Marlas of purchased land by way of gift. He also gifted 3592 Kanals and 10 Marlas of the purchased land to his legal heirs. His son Aurangzeb gifted back to him 898 Kanals and 3 Marlas as per Mutation 'No. 127 which was attested on 18th of February, 1971; thus in all the first respondent owned 971 Kanals and 19 Marlas in District D.

1. Khan and 34 Kanals and 4 Marlas in District Kohat. On the promulga tion of the Land Reforms Regulation, 1972, the first respondent submitted his declaration to the Deputy Land Commissioner, D.

1. Khan. Upon the scrutiny of the declaration the Deputy Land Commissioner, by order dated 30th of May, 1972, directed him to surrender 171 Kanals and 19 Marlas of land in village Chehkan, Tehsil and District D.

1. Khan but allowed him to retain 800 Kanals of land in that District plus 34 Kanals and 4 Marlas of inherited land. He was also ,allowed an additional area "equivalent to 1/6th of P. I. Units of 800 Kanals" as he had installed a tubewell to irrigate his land in village Chehkan in respect of which he had filed a declaration form (L. R. VII) The Deputy Land Commissioner also upheld the gift of 1197 Kanals and 10 Marlas in favour of his daughter‑in‑law, Mrs. Naseem Aurangzeb. The rest of the land held by the legal heirs of the first respondent was treated as his own land and resumed under para. 10 of Martial Law Regulation No..'

115. The first respondent appealed to the Land Commissioner, D. I. Khan, against this order who dismissed the appeal. The first respondent went in revision to, the Chief Land Commissioner N.‑W. F. P., who by order dated 5th of May, 1973, accepted the revision and held that the transfer made by way of‑ gift to his legal heirs was not covered by the provisions of Martial Law Regulation No.

115. Thereafter the Federal Land Commission in exercise of its suo motu revisional powers, summoned the record of the case and‑ a Member of the Federal Land Commission, after hearing the first respondent, by order dated 1st of July, 1975, held that he was only entitled to hold 30 Kanals out of the purchased land plus 34 Kanals and 4 Marlas of his inherited land. The first respondent assailed this order in writ jurisdiction and a learned Single Judge upheld his contention and allowed him to retain 800 Kanals of purchased land plus 34 Kanals and 4 'Marlas of the inherited land and an area equivalent to 1/6th of the P.

1. Units of 400 Kanals. By the same order the learned Single Judge upheld the gift of land made in favour of his daughter‑in‑law, Mst. Naseem Aurangzab. She had also filed a constitutional petition to assail the impugned order. These petitions were filed to challenge this conclusion of the learned Single Judge. The learned Single Judge held that clause (2) of para. 10 of Martial Law Regulation No. 115 placed an embargo on the transfer of land in favour of heirs. Therefore, the gift made in favour of Mrs. Naseem Aurangzeb would not be hit by this embargo as she was not an heir within the meaning of explanation (1) to clause (b) of para. 7 of Martial Law Regulation No.

115. In seeking leave to appeal the learned counsel has only assailed the correctness of this conclusion as it was contended by him that the transfer by way of gift fell within the ambit of clause (b) of para. 7 of Martial Law Regulation No. 115 as she was not covered by its proviso which saved alienations made in favour of heirs. This contention is misconceived, for the tenor of the orders of the Land Commission authorities clearly show that the case of the first respondent, Abdul Qadir Khan in C. P. 117‑R of 1977 was being dealt with under para. 10 of Martial Law Regulation No. 115 as the acquisition was made by him as a Government servant both during the tenure of his service and after his retirement. The learned Single Judge rightly held that clause (2) of para. 10 would be applicable which does not prohibit the alienation in favour of a person who is not an heir. The embargo only applies to heirs. It was for this reason that the transfers made in favour of the heirs were hit by this embargo and the land resumed. Again, it is not the case of the petitioner that the first respondent is holding the land beyond the limit prescribed by clause (1) of para.

10. Therefore, the order of the High Court is unexceptionable and the petitions are dismissed. Petition dismissed.