1984 PLP 750 (MLD)

ALI NAWAZ BUDHANI, J. This is a constitutional petition challenging the order passed by the respondent No. 3, i.e. Additional Chief Land Commissioner, Sind on 28-3-1977 with a prayer to restrain respondents 1 to 3 to implement the said impugned order dated 28-3-1977.

2. The facts are that the petitioner (deceased) declarant Syed Riazuddin was a Government servant and he retired as Additional Custodian (Judicial) after 1-1-1959. The deceased petitioner Syed Riazuddin was allotted the agricultural lands on C.P.R. No. 27214 on 2-10-1959 i.e. after the crucial date namely 1-1-1959 as envisaged under para. No. 10 of M.L.R.

115. The deceased-petitioner having been effected by M.L.R. 89/91 was allowed to retain the lands which are mentioned hereunder:

Area Retained Area surrendered as per Allocation Order No.1021, dated 4-11-1963. (1) Deh Ghana 29-38 (1) Deh Ghan 23-24 (flow) (2) Deh Caha 70-20 (2) Deh Dara Machi 272-14 (flow) (3) Deh Dara Machi 38-23 (3) Deh Dara Machi 26-03 (lift) (4) Deh Rukanpur 7-01 (4) Deh Landodero 186-09 (Sailabi) (5) Deh 108 Mirpurkhas 4-29 (5) Deh Rajo Dero 307-24 (-do-) (6) Deh Qasbo 178-21 (-do-) Total 150-31 Total 994-15

3. That as per report of the Mukhtiarkar. Taluka Johi, District Dadu dated 25-5-1972 the deceased-petitioner however, opted to Purchase the entire abovementioned surrendered land which is still shown as a running grant in the revenue record as full price thereof has not yet been paid. Out of this surrendered purchased land the deceased-petitioner made the following sale transactions amongst other sale transactions. S. No Name of purchaser. Deh. Area Date of transaction. Category

4. Abdul Aziz Solangi Pet.No.13 Dera Machi 8-14 24-4-1968 Schedule B

7. Saeed Ahmed Solangi Pet. No.14. -do- 50-04 4-3-1966 Surrendered Land

12. Abdul Samad and Abdul Ghafar Petitioners Nos. 15-16 -do- 171-00 3-3-1966 -do-

4. The instant petition relates to above-mentioned sale transactions and the deceased petitioner Syed Riazuddin entered into three agreements dated 24-4-1968 and 4-3-1966 duly attested by the Resident Magistrate Dadu. Photostat copies of the said three agreements are filed as Annexures 'A', 'A-I', 'B' and 'C'. Original certificate of the Mukhtiarkar Johi, dated 11-10-1972 is also annexed alongwith the petition as Annexure 'D'. Pursuant to above alienations the possession of the said lands was handed over to petitioners Nos. 13 to 16 who are now paying Land Revenue to the Government.

5. The deceased petitioner Syed Riazuddin declared the aforesaid alienations which were scrutinized by the learned Land Commissioner Sind Hyderabad who by his order dated 16-12-1972 Annexure 'B' was pleased to declare the alienation at S. No. 4 dated 24-4-1968 as valid and further directed the respondent No. 1 Deputy Land Commissioner, Dadu to scrutinise and determine the alienations Nos. 7 and 12 at his end as these alienations pertaining to a period prior to 1-3-1967, were not subject to scrutiny by the learned respondent No. 2 i.e. Land Commissioner Sind at Hyderabad. Consequently the remaining two alienations were also enquired into by the respondent No. 1, i.e. Deputy Land Commissioner, Dadu, who by Order No. P/57/40/72, dated 7-6-1973 Annexure 'P' declared the same as valid. There after by order dated 21-7-1975 Annexure 'G' the respondent No. 3 initiated suo motu revisional proceedings against the petitioners Nos. I to 12 on the grounds that the lands involved in the transactions at S. Nos. 4, 7 and 12 being surrendered purchased land, was a running grant and could not be alienated without the permission of the Land Commissioner under M.L.R. 89/91. Thus, the impugned order dated 28-3-1977 Annexure 'H' was passed by the respondent No. 3 (Mr. S.M. Waseem) who declared the alienations at S. Nos. 4, 7 and 12 as void and ordered the respondent No. 1 to redetermine the deceased petitioner's holding accordingly. It was the petitioner's submission that the impugned order Annexure 'H' was passed by respondent No. 3 behind the back and without providing them opportunity of being heard. This order, therefore, was challenged.

6. Mr. Imam Ali Kazi, the learned counsel for the petitioner has contended that late Riazuddin Ahmed was a Government servant who was allottee of land under M.L.R. 89/91 and transactions in question with possession were effected prior to promulgation of M.L.R. 115, therefore, merely because the transfer was made before payment of the instalments without the permission of the Collector, the same could not be declared void. The learned counsel has referred to Letter No. F-7 (4)/PLC/73, dated 20th August, 1973 which is reproduced as under:

"In case of sale or sale agreement, where the prior permission of the Collector was not obtained, all such transactions are to be 'reopened and thoroughly scrutinized by the Land Commis sioner and if they are found to be genuine, they may be confirmed in spite of the fact, that the permission of the Collector was not obtained. However, gifts made by the grantees of land under M.L.R. 89/91, should be treated as void and all such lands should be resumed immediately and a compliance report sent to the Federal Land Commissioner. (3) Sind Land Commissioner had been pleased to decide that the above order of the Federal Land Commissioner should be complied with."

7. A plain reading of this Circular letter makes it clear that in case the transactions are found genuine they may be confirmed even if prior permission of the Collector has not been obtained. This view has been accepted in Mahfoozur Rehman Bahar v. Federal Land Commission P L D 1980 Kar. 427 and Ali Khan v. Additional Chief Land Commissioner, Sind P L D 1980 Kar. 189.

8. The Land Commissioner has accepted alienations at S. No. 4 valid. The Deputy Land Commissioner, the respondent No. 1 has declared the observations at Serial Nos. 7 and 12 as bona fide. This nature of transaction has not been disturbed by the respondent No.

3. In any event on examination of admitted facts relating to these transactions, we find that agreement for sale was executed and possession has been delivered to the purchasers. In such circumstances, the bona fide and genuineness of these transactions cannot be doubted. In this regard reference can be made to 1982 C L C 1942, 1979 C L C 294 and P L D 1981 Kar. 114.

9. The respondent No. 3 passed the impugned order on the sole ground that Collector's prior permission for sale was not obtained by S. Riazuddin Ahmed, This observation is in complete disregard of the Circular letter quoted above. We, therefore, declare that the impugned order dated 28-3-1977 has been passed by the respondent No. 3 without lawful authority and is of no legal effect. We allow the petition with no order as to costs. M . Y . H . Petition allowed.