2002 PLP 2782 (YLR)

3. The Revenue staff made a report for review of the afore‑said gift mutation being violative of MLR 64 and the learned Collector vide order dated 4‑12‑1967 permitted the review. Accordingly the said mutation was cancelled vide order dated 9‑12‑1967 by the Assistant Collector. Against the said order Ghulam Sarwar filed an appeal which was accepted by Collector on 23‑7‑1968. Contesting respondents challenged the order before the Additional Commissioner which was allowed to the extent of share of Mst. Rehmat Bibi on the sole ground that an area of Khewat No.32 and 38 measuring 1 Marla of land was left from the transaction, therefore, the mutation is hit by Martial Law Regulation 64 of.1959 vide order dated 3‑3‑1969. Ghulam Sarwar challenged this order in revision before the learned Member Board of Revenue but the same was dismissed through impugned order.

4. Mirza Manzoor Ahmad learned counsel for the petitioner contends that Mst. Rehmat Bibi owned 1/3rd of the total land measuring 111 Kanals, 6 Marlas and to the extent of Mst. Rehmat Bibi the transaction was held to be violative of Martial Law Regulation

64. As far as gift of the other share is concerned there is no dispute and the Mutation was found to be valid. He has further argued that by virtue of inheritance Mutation No.760 of Muhammad Shafi husband of Mst. Rehmat Bibi an area measuring 2 Kanals, 1 Marla in the afore‑said Khata devolved upon her. The perusal of the mutation shows that it related to mutation of Muhammad Shafi in respect of Ala Malkiat held by him. By virtue of operation of para. 22 of Martial Law Regulation 64 of 1959 Ala Malkiat ceased to be operative with effect from 7‑2‑1959 on which date the said Ordinance was promulgated and therefore, on the basis of the commutation no land could be said to have devolved upon Mst. Rehmat Bibi. He further argued that the Revenue Authorities have no jurisdiction whatsoever to examine the transaction whether it was ultra vires of para. 22 of Martial Law Regulation 64 and in support of his contention relied upon Nisar Ahmad Khan v. Mst. Ismat Jehan Begum (1968 SCMR 667), Sadiq Ali v. Taj Din and others (PLD 1992 Lahore 158) and Mst. Aisha Bibi v. Nazir Ahmad and 10 others (1994 SCMR 1935).

5. Learned counsel for legal heirs of contesting respondents, on the other hand, submits that Mst. Rehmat Bibi had not gifted her entire share to Ghulam Sarwar, therefore, the gift to the extent of her share is violative of Martial Law Regulation

64. The order of Additional Commissioner and the learned Member Board of Revenue are based on proper assumption of law and warrant no interference.

6. Heard. Record perused. Admittedly Assistant Collector sanctioned the gift Mutation No.3 in. favour of Ghulam Sarwar on 27‑8‑1963. On the report of the Revenue Agency sanction for review was granted by the Collector on 4‑12‑1967 and the mutation was. cancelled thereafter on 9‑12‑1967. Same was restored by the Collector on 23‑7‑1968 holding that there was no necessity for review of the original mutation. Said order was challenged before the Additional Commissioner by respondents Nos. 2 and 3 who while exercising powers under the Land Revenue Act set aside the order of the Collector to the extent of share of Mst. Rehmat Bibi and the learned Member Board of Revenue also upheld the said order on the ground that 2 Kanals, 1 Marla of the land devolved upon Mst. Rehmat Bibi was not included in the gift and as such, it was in violation of Martial Law Regulation

64. The afore‑said piece of land has devolved upon Mst. Rehmat Bibi from her husband who had Ala Malkiat. Said Malkiat was no more operative after enforcement of Martial Law Regulation 64 in the year 1959. In the case of Ghulam 'Harder v. Ghulam Raza Shah and 12 others (PLD 1979 Lahore 481) it was observed in para. 10 as under:‑ "Ala Malkiyat rights already stood abolished on 7‑2‑1959 when Martial Law Regulation 64 was enforced. The dual proprietorship was finished. Thereafter, the proprietorship vested in the owner in actual possession of the area. Any reclamation subsequent to 7th of February, 1959 could not be governed or regulated by the law or custom or contract as evidenced by the wajib‑ul‑arz in force before that date. Such reclamation could not deprive an owner of his right of such ownership conferred by para. 22 of Martial Law Regulation

64. The appellant cannot, therefore, claim any benefit of Adna Malkiyat even if he is proved to have reclaimed any area after the enforcement of Martial Law Regulation

64. Nor can he claim any right of occupancy in view of the bar on creation of conferment of such a right of section 114 of the Punjab Tenancy Act added by the Punjab Tenancy (Amendment) Act, 1952, which provides that no person shall after the commencement of the Amendment Act mentioned above shall acquire or have occupancy rights in any land under any contract, enactment or any decree or order of any Court or other authority. " Admittedly the left out fraction of land fell in share of Mst. Rehmat Bibi after 7‑2‑1959. She could not inherit the afore‑said 2 Kanals, 1 Marla from her husband Ala Malkiyat having been abolished with effect from the afore‑said date. The non‑inclusion of afore said piece of land does not invalidate the gift mutation. This aspect of the case was not at all examined by the learned Member Board of Revenue.

7. The next contention of the petitioner's counsel that the authorities under the Land Revenue Act were not competent to declare transaction violative of Martial Law Regulation 64 though the same officer enjoyed dual powers. Supreme Court in the case of Nasir Ahmd Khan v. Mst. Ismat Jehan Begum (1968 SCMR 667) in its exhaustive judgment observed at page 670 as under:‑ "The question of jurisdiction of the Civil Courts has to be considered in the light of paragraphs 3, 4 and 27 read with para 25 of Martial Law Regulation

64. Paragraph 3 provides:‑ "The provisions of this Regulation, and any rule or order made thereunder, shall have effect, notwithstanding anything to the contrary in any other law or in any order or decree of Court or other authority, or in any rule of custom or usage, or in any contract, instrument, deed or other document". Paragraph 4 enacts that for carrying out the purposes of the Regulation, a Commission will be constituted consisting of the Governor of West Pakistan and not more than 5 other members to be appointed by him. The Commission was to have all the powers necessary for the implementation of the Regulation and incidentally, to set up organizations and appoint officers, authorities and persons and confer powers on, and assign duties to them. One of the powers conferred on the Commission is to make such provision as may be necessary, by order notified in the official Gazette, to remove any difficulty that may arise in giving effect to the purposes of the Regulation. Such an order, if duly notified, would be deemed to form part of the Regulation. Sub‑para. (6) of this paragraph provides that where any dispute arises in carrying into effect the provisions of the Regulation, such dispute shall be referred to the Commission whose decision thereon shall be final. This paragraph, inter alia, also lays down that the Commission may nominate one of is Members to be the Chief Land Commissioner who, subject to such directions as may from time to time be given by the Commission, shall be responsible for the implementation of this Regulation. Paragraph 27 bars the jurisdiction of all Courts including the High Court and .the Supreme Court or of any other authority, other than an authority appointed under the Regulation, in respect of any matter which the Commission or an officer acting under the authority of the Commission, is empowered to determine. It would thus appear that the question whether para. 25 invalidates the transaction or not is one falling with the exclusive functions of the Commission or of the Chief Land Commissioner who are charged with the duty of implementing the provisions of the Regulation. " This Court also in the case of Sadiq Ali v. Taj Din and others (PLD 1992 Lahore 158) observed that the jurisdiction to determine questions whether sale transaction in question offended against the provisions of para. 25, Land Reforms Regulation, 1959 and whether para 25 Land Reforms Regulation, 1959, would invalidate transaction in question or not was the one falling within the exclusive functions of the Land Commission or the Chief Land Commissioner who were charged with the duty of implementing the provisions of the Land Reforms Regulation, 1959. No other authority, including the Civil Courts and their higher hierarchy, could go into that aspect of the matter. Revenue Authorities also had no concern with the determination of validity or otherwise of the sale, transaction in the context of para. 25, Land Reforms Regulation, 1959. Orders in this respect passed by Civil Court, Appellate Court as also by the Revenue Authorities, right upto the Board of Revenue were, thus, without jurisdiction. Same view was reiterated in Mst. Aisha Bibi v. Nazir Ahmad and 10 others (1994 SCMR 1935) with further elaboration that Revenue Officer while exercising his powers of review under the Land Revenue Act, 1967 could not simultaneously act under Land Reforms Regulation, 1959 and if he was of the view that any provision of the Land Reforms Regulation, 1959 had been violated, his duty was to refer the matter to the Land Commission or the Deputy Land Commissioner who was supposed to be the principal officer of the district concerning land disputes under the Regulation. Orders passed by the hierarchy of officers under the Land Revenue Act were without jurisdiction, inasmuch as the power to declare any transaction as offending the provision of Land Reforms Regulation, 1959 vested in the Land Commission or the Land Commissioner appointed thereunder and the jurisdiction of the Civil Court as well as the other Tribunals/Authorities were expressly excluded. When an officer acted under different statute he had to strictly follow the procedure embodied therein and could not exercise his powers availing the provisions of other statute.

8. In the light of the judgments referred above, it is crystal clear that the Additional Commissioner and the learned Member Board of Revenue while exercising powers under the Land Revenue Act were not competent to hold transaction violative of Martial Law Regulation

64. If they felt any infringement of Martial Law Regulation 64 the matter could be referred to the competent Authority for its scrutiny under Martial Law Regulation 64 of 1959. The officers on the Revenue hierarchy were not competent to declare gift mutation violative of Martial Law Regulation

64. This petition is allowed and the impugned orders dated 7‑4‑1970 passed by the learned Member Board of Revenue and of the Additional Commissioner dated 3‑3‑1969 are declared without jurisdiction, consequently the order of the Collector dated 23‑7‑1968 is restored. No order as to costs. H.B.T./G‑136/L Petition allowed.