2018 PLP 1 (CLCN)

AMIN-UD-DIN KHAN, J.

Through this single judgment we intend to decide the above captioned writ petition as well as Writ Petition No. 416 of 2002 (Muhammad Ali v. Member Federal Land Commission etc.) and Writ Petition No.499 of 2002 (Muhammad Yar deceased through his legal heirs v. Member Federal Land Commission etc.). The instant writ petition as well as Writ Petition No.416 of 2002 have been filed by the tenants/allottee of the resumed land, whereas Writ Petition No.499 of 2002 has been filed by Muhammad Yar deceased (maternal grandfather of declarant) through his legal heirs claiming to be the transferee of land from declarant Syed Muhammad Mujahid Hussain Shah through tamleek mutation No.25 attested on 17.1.1971 of Mouza Fidai Shah and part of land through tamleek mutation No.228 attested on 27.2.1971 of Mouza Chakoka Minchin Abad District Bahawalnagar. Through all the writ petitions the order passed by the Federal Land Commission dated 23.1.2002 has been challenged. In the writ petitions filed by the tenants/allottee, the previous orders dated 15.9.1997 and 26.8.1997 of the Land Commissioner and Deputy Land Commission have also been challenged.

2. The necessary facts for determination of the writ petitions in hand are that Syed Muhammad Mujahid Hussain Shah was declarant under the Land Reforms Regulation 1972. In the declaration form he indicated that he had transferred the property through mutation No.25 attested on 17.1.1971 in village Fidai Shah to his two sisters namely Ghulam Sughran and Sardar Begum, the land measuring 500-kanals and 300-kanals respectively and he/declarant also transferred the land measuring 200-kanals to his maternal grandfather namely Muhammad Yar. He also mentioned that he has already gifted the land measuring 830-kanals, 13-marlas in Mouza Said Ali in favour of his aforesaid two sisters through mutation No.30 attested on 17.1.1971. Similarly vide mutation No. 228 attested on 27.2.1971 he had gilled the 85-kanals 17-marlas of land in favour of his maternal grandfather in village Chakoka District Bahawalnagar. The aforesaid mutations were scrutinized and declared invalid by the Land Commissioner, Bahawalpur Division, Bahawalpur vide his order dated 21.9.1972 holding that since the gifts were made in favour of non-heirs, as such were not covered under the exemptions of Paragraph 7 of the Land Reforms Regulation 1972. The land transferred through these mutations was calculated in the holding of the declarant. The declarant was allowed to retain 12000 PIUs the permissible sealing and 2000 PIUs more on the basis of having a Tube Well in accordance with Paragraph 8 of the Land Reforms Regulation, 1972. Mst. Ghulam Sughran and Sardar Begum filed an appeal before the Chief Land Commissioner against the order dated 21.9.1972, which was dismissed vide order dated 22.10.1973. A revision petition was filed before the Federal Land Commissioner which was also dismissed by the Member Federal Land Commission vide order dated 11.3.1975. Along with the above said three mutations, mutation No.19 was also declared as invalid, though the said mutation was not under scrutiny by any of the Land Reforms Authorities. The declarant as well as the transferees of the said mutations filed Writ Petition No.1558 of 1975 against the Federal Land Commission as well as the tenants/allottee of the land which was accepted vide order dated 26.1.1994 and the matter was remanded to the Federal Land Commission after setting aside the previous orders passed by the Member Federal Land Commission dated 11.3.1975. The order of Additional Chief Land Commissioner dated 22.10.1973 and of Commissioner Bahawalpur Division dated 21.9.1972 with an observation that the parties shall be at liberty to raise all the questions before the Federal Land Commission. When the parties to the writ petition including the Assistant Advocate General Punjab agreed that the decision rendered by the Land Reforms Authorities was violative of the principle of natural justice as the vendees of the donee was not heard at the time of passing of the order who was initially a respondent in the said writ petition, subsequently transposed as petitioner. After remand the Federal Land Commission accepted the petition vide order dated 12.6.1996 and declared mutation No.30 valid and mutation No.25 as valid to the extent of share of Ghulam Sughran and Sardar Begum, while to the extent of Muhammad Yar in response of land measuring 200-kanals it was declared invalid. Similarly mutation No.228 was held void. This order of Member Federal Land Commission dated 12.6.1996 was challenged through Writ Petition No.5661 of 1997 filed by Muhammad Ali etc, claiming to be the allottee of the land. This court vide order dated 20.3.2001 remanded the case to the Federal Land Commission with the direction to re-decide the matter after hearing all the parties and also the legal heirs of Muhammad Yar deceased. During the hearing it is noted in the impugned order passed by the Member Federal Land Commission that the legal heirs of Muhammad Yar stated that they have also filed writ petition in the High Court and subsequently the same was accepted and matter was remanded vide order dated 05.11.2001.

3. The Member Federal Land Commission after hearing all the learned counsel for the parties representing the declarant, the donees, the transferee from the donees and the allottees/tenants decided the case No.RP. 1 (703)/FLC/2001 and case No.RP. 1 (683)/FLC/2001 in the following way. Para 13 is important which is reproduced:- In view of the above findings it is held that mutation No.25 dated 17.01.1971 to the extent of 800 kanals transferred in favour of Ghulam Sughran and Sardar Begum and mutation No.30 dated 17.01.1971 as a whole are held valid. The mutation No.19, in favour of the mother of the declarant is also held valid. The mutation Nos.228 and 25 to the extent of 200 kanals transferred in favour of Muhammad Yar are held invalid. The Deputy Land Commissioner concerned is directed to determine afresh the holding of Syed Mujahid Hussain Shah after excluding the land involved in the validated alienations in accordance with law."

4. We have heard the learned counsel for the parties at full length and also gone through the record minutely with their able assistance.

5. Learned counsel for the writ petitioners who filed the petition on behalf of tenants i.e. Writ Petition No.1961 of 2002 and 416 of 2002 argues that the sisters are not the legal heirs in accordance with Paragraph 7 of the Land Reforms Regulation, 1972 and further the learned Member Federal Land Commission excluded the transaction from scrutiny on the basis that the sisters being unmarried have not received their due share of inheritance of ancestral land.

6. Learned counsel for the petitioners of Writ Petition No. 499 of 2002 argues that the transaction in favour of maternal grandfather was a bona fide transaction, therefore the Member Federal Land Commission fell in error while declaring the transactions of gift in favour of maternal grandfather as invalid. Learned counsel for the petitioners prays for acceptance of their respective writ petitions, setting aside the orders impugned through the writ petitions.

7. On the other hand, learned counsel for contesting respondents argues that to interfere in the orders passed by the Land Reforms Authorities this court has to go into the factual controversy, therefore argues that the writ petitions are not competent. Prays for dismissal of the writ petitions.

8. After thorough hearing the matter we have noted that two questions are involved in this matter, requiring consideration and determination by this Court. One is that the Member Federal Land Commission has declared that the sisters are also legal heirs, therefore the transactions of gift by the declarant are saved in accordance with Paragraph 7 of the Martial Law Regulation 115 and further that they being unmarried sisters were compensated through the impugned mutations of gift by the declarant as they have not received the due share of inheritance of ancestral land.

9. So far as the question that the sisters were legal heirs, we are clear in our mind that the legislated law is to be read and interpreted as it is legislated, nothing can be read in it which is not the part of the legislated law as Explanation I of Para 7 of M.L.R 115 is very much relevant which is reproduced as under:- "Explanation 1: For the purposes of this sub -paragraph and paragraph 10, an heir shall mean the owner's wife or wives, sons, daughters, father, mother and sons and daughters of a deceased son or daughter." When it is clearly mentioned that the legal heirs for the purposes of preceding paragraphs are wife or wives, sons, daughters, father, mother and sons and daughters of a deceased son or daughter and no other person is legal heir for the purpose of preceding paragraph. The sisters cannot be read in it. It is against the principles of interpretation of statute. In this view of the matter, when the legislature has not declared the sisters as legal heirs for the purpose of this paragraph, therefore, they cannot be said to be the legal heirs of the declarant. Light can be taken from the judgment of august Supreme Court of Pakistan reported as "Begum Nusrat Ali Gonda v. Federation of Pakistan and others" (PLD 2013 Supreme Court 829). For taking light I quote recognized principles mentioned in Para 69 of the judgment for interpretation of the statute, which are (a) to (i) as under:- "a. That the entire Constitution has to be read as an integrated whole. b. No one particular provision should be so construed as to destroying the other, but each sustaining the other provision. This is the rule of harmony, rule of completeness and exhaustiveness. c. Interpretation to be consistent with the Injunctions of Islam. d. It must always be borne in mind that it is only where the words are not clear, or the provision in question is ambiguous, that is, it is fairly and equally open to diverse meanings, that the duty of interpretation arises. e. Intention to be gathered from the language of the enactment, otherwise known as the 'plain meaning rule'. f. it is elementary rule of construction that it is to be assumed that the words and phrases of technical legislation are used in their technical meaning, if they have acquired one, and otherwise in their ordinary meaning. Critical and subtle distinctions are to be avoided and the obvious and popular meaning of the language should, as a general rule, be followed. g. It is a cardinal rule of construction of statutes that no words are to be added or omitted or treated as surplusage or redundant. h. That the words of written Constitution prevail over all unwritten conventions, precedents and practices to the contrary. i. Legislative history is relevant for interpretation constitutional provisions." The principle (g) indicates that no words are to be added or omitted or treated as surplusage or redundant. In this view the Member Federal Land Commission has added the word 'sister' in the provision and then presumed them as legal heirs, which is not permissible under the law.

10. Now comes the second part of the controversy that whether the sisters of the declarant were widowed or unmarried and they have not received their due share of inheritance of ancestral land. The Member Federal Land Commission has noted in the impugned judgment that along with the declarant and donee sisters they were having brothers namely Ghulam Rasool Shah who obtained 72 squares of land, Muhammad Abbas Shah and Zain-ud-Din Shah obtained 64 squares of land each, Syed Muhammad Mujahid Hussain Shah the declarant obtained 32 squares of land, while Ghulam Sughran and Sardar Begum obtained 12 squares of land each vide mutations Nos. 6, 10, 11 and 14 of different Mouza through gift from their father and through inheritance.

11. Learned counsel for the petitioners/tenants has filed C.M. No.2597 of 2005 for permission to produce certified copies of the documents annexed with this petition. Most of the documents are the mutations of inheritance as well as gift by Ghulam Ahmad Shah father of the declarant and the donees. Learned counsel has also submitted the resume of mutations to show that through the mutation of inheritance as well as through gift the father of the parties gifted the land to the declarant and the donees and the land received through inheritance in various Mouzas comes to 8410-kanals 17-marlas of Syed Muhammad Mujahid Hussain Shah the declarant, whereas the land of Ghulam Sughran and Sardar Begum comes to 4185-kanals 17-marlas each.

12. At this stage it will be important to note that by perusal of mutation No.4 of inheritance of Ghulam Ahmad Shah son of Syed Jalal Shah relating to Mouza Fidai shows that at the time of declaration it was noting that he is having three sons and four daughters. He married twice. One wife Mst. Sahibzadi passed away in his lifetime, whereas Mst. Nazir Begum was divorced. In this view of the matter, when the learned Member Federal Land Commission has noted that one of the brothers of declarant received 72 squares of land, whereas the other two brothers received 64 squares of land each, how it can be said that the declarant has transferred the disputed land through the impugned mutations through gift in favour of donees his sisters to compensate them as they have not received due share of inheritance of ancestral land. This ground for declaring the transfer as valid is incorrect at the face of it. It is also not on the record that the donees were unmarried or widowed at the time of transfer of land through gift mutations under challenge. In this View of the matter, the findings recorded by the Member Federal Land Commission vide judgment dated 23.1.2002, whereby the mutation No.25 attested on 17.1.1971 to the extent of 800-kanals land declaring valid and declaring mutation No.30 as a whole valid, are absolutely without jurisdiction and rest of the findings whereby mutation No.228 was declared invalid and mutation No.25 to the extent of 200-kanals transferred in favour of Muhammad Yar declared to be invalid by the Member Federal Land Commission are upheld.

13. Consequently, Writ Petitions Nos.1961 of 2002 and 416 of 2002 are accepted, whereas Writ Petition No.499 of 2002 stands dismissed. MH/M-149/L Order accordingl