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Writ Petition No. 823oT 1978, heard on 6th June, 1983.

‑‑‑ Para. 29‑Notification No: 7 (18) 72‑Cord‑I, dated 10th July, 1976‑Constitution of Pakistan (1973), Art. 199‑Transac tion of sale or exchange‑Filing of details of transaction of land made by declarant within stipulated period Correctness and legality of Officer on Special. Duty, Federal Land Commission competent to satisfy himself as to bona fide of such transaction Mutation of exchange between declarant and widow sister being heir of declarant‑Sister not proved "widow"‑Transaction, held, rightly declared to be fake in circumstances.

‑ Paras. 29 & 7, Explanation 111‑Notification No. 7 (18) 72‑Cord‑I, dated 10th July, 1976‑Constitution of Pakistan (1973), Art. 199‑Transaction of sale or exchange‑Filing of details of transaction of land made by declarant within stipulated period Correctness and legality of Officer on Special Duty, Federal Land Commission competent to satisfy himself as to bona fide of such transaction‑Transaction of sale between declarant and. his brother‑Declarant selling land to his brother for Rs. 40,000 and getting back same on, mortgage for Rs. 60,000 on same day Whether such sale or exchange bona fide, a question of fact and O. S. D. competent to investigate same‑Officer on Special Duty calling for record on report of Inspection Team‑Report of Inspection Team, held, cannot be treated as application by aggrieved person land action of Officer on Special Duty, held further, a suo motu exercise of power‑Officer on Special Duty declaring tran saction of sale to be fake, held, justified in circumstances .

Farooq Ahmad Khan Laghari v. Muhammad Rashid P L D 1981 Lab. 159 fol.

‑‑ Para. 29‑Purpose of proceedings under regulation is ascertain ment of holding of declarants so as to resume excess land, if any Vendee or transferee from declarant and particularly in cases where there is no dispute between vendors and vendees, held, cannot claim opportunity of being heard as matter of right.

Sardar Shafique Haider Khan Laghari v. Member (Abdul Qayyum), Federal Land Commission P L D 1981 Lab. 356 fol.

‑‑ Para. 29‑Notification No. 7 (18) 72‑Cord‑I, dated 10th July, 1976‑Constitution of Pakistan (1973), Art. 199‑Wife being heir of deceased declarant, mutation relating. to transaction of exchange in her favour by declarant, held, could not be looked at by O. S. D., Federal Land Commission on any ground Action of O. S. D. regarding such mutation, held further, without jurisdiction.

‑‑ Para. 29 ‑ Notification No. 7 (18) 72‑Cord‑I, dated 10th July, 1976 ‑ Constitution of Pakistan (1973), Art. 199 ‑ Determi nation of Produce Index Units having already been done by Deputy Land Commissioner‑O. S. D., held, not necessarily to determine again particularly when determination by D. L. C. not challenged before O. S. D.

‑‑ Art. 199‑Party not filing appeal before authority against impugned order but order as whole challenged in Constitutional petition‑High Court while considering legality of impugned order affecting rights of such party finding orders illegal to that extent declared same to be without lawful authority.

Ghulam Farid Khan for Petitioner.

Ch. Irshad Ahmad, Legal Advisor for Respondent.

Date of hearing : 6th April, 1983.

These three Writ Petitions Nos. .823/78 by Muhammad Iqbal, 850/78 by Allah Ditta, Haqnawaz, Rabnawaz and Muhammad Bakhsh and 3762/77 by Mst. Hayat Bibi arise from an order of Mr. Maqbool A. Sheikh, Officer‑on‑Special Duty, Federal Land Commission, whereby he on 21st October, 1976 declared mutation No. 241 dated 6th January, 1971 of sale pertaining to village Sardarpur, mutation No. 34 of exchange, Chak No. 4/8‑R, mutation No. 38 of exchange, Chak No. 5/8---R, mutation No. 71 of exchange, Chak No. 17/ 8‑BR and mutation No. 26 of Chak No. 6/8‑R, all dated 11th January, 1971, void, to be without lawful authority and of no legal effect. Since the three writ petitions arise from the same order, we propose to dis pose them of through single judgment.

2. The facts leading up to this petition in brief are that Muhammad Iqbal petitioner (W. P. No. 823/78) is a declarant under Martial Law Regulation No. 115. He filed details of ail the transactions of land made by him within the stipulated period which on 10th April, 1974, after scrutiny, were found valid by Provincial Land Commission. On 27th February, 1975, head of the Inspection Team wrote a report to the effect that the above‑stated mutations of exchange between the petitioner and his wife Mst. Hakim Bibi and his sister Mst. Hayat Bibi and mutation of sale i.e. mutation No. 241 in favour of Muhammad Bakhsh were invalid. Whereon ultimately, Mr. Maqbool A. Sheikh, respondent vide his impugn ed order dated 21st October, 1976 declared these transactions as void. Hence this writ petition..

3. The learned counsel in his lengthy address has raised the follow ing worth‑notice points

(i) That under paragraph No. 29 of Regulation No. 115 (Land Reforms Regulation, 1972), Mr. Maqbool A. Sheikh, O. S. D., was no legally of competent to go into the correctness and legality of the disputed transactions and as such the impugned order has been passed without lawful authority.

(ii) That no doubt, respondent could initiate proceedings suo motu and since in the case in hand, the proceedings have been initiated on the report of the inspection team, therefore, the impugned order being violative of paragraph No. 29 of M. L. R. 115, is illegal.

(iii) That Muhammad Bakhsh and others, the petitioners (W. P. No. 850/78) and Mst. Hayat Bibi petitioner (W. P. No. 762/77) were not given any notice and have been condemned unheard.

(iv) That mutations of exchange being in favour of wife and Mst. Hayat Bibi, who, too, being a widow sister was an heir of the declarant, the mutations in their favour were quite valid and immune from proceedings.

(v) That the respondent has not determined the P. 1. Units before passing the impugned order.

As against this, the representative of respondent has vehemently defended the impugned judgment. He submitted that respondent No. 1 had legal authority to pass the impugned order and that the mutations have been declared void for the reasons recognized by law.

4. After hearing the learned counsel, we have not been able to persuade ourselves to agree with the learned counsel for the petitioner with regard to the transactions of exchange in favour of Mst. Hayat Bibi (sister) and the transaction of sale (mutation No. 241) in favour of Muhammad Bakhsh, on the grounds that in view of the notification dated 10th July, 1976, the respondent was competent to satisfy himself as to the bona fide of the disputed transactions and that since Mst. Hayat Bibi has not been proved a "widow" sister and that in the peculiar circumstances of the case, the transaction of sale, mutation No. 241 appears to be fake. It would be convenient to quote notification and relevant provisions of law

"The Gazette of Pakistan Extraordinary Published by Authority Islamabad, Saturday, July 10, 1976

Other Notifications. Orders, etc, Government of Punjab Cabinet Secretary " (Cabinet Division)

NOTIFICATIONS

Rawalpindi, the 10th July, 1976

No. 7(18) 72‑Cord‑i.‑In exercise of the powers conferred by paragraph 29 of the Land Reforms Regulation, 1972, the Federal Government is pleased to authorise the following persons for the purposes of the said paragraph 29 :‑

(1) Mr. Muhammad trshaad Khah; O.S.D., Federal Land Commission. (2) Mr. Maqbool A. Sheikh, O.S D., Federal Land Commission.

(3) Mr. Mazhar Ali Kazi, O.S.D., Federal Commission.

WAQAR AHMAD,

Cabinet Secretary."

Paragraph No. 7.‑Certain Transaers Void.‑(1) Save as otherwise provided in this Regulation.. (by save in cases when the Commission is satisfied that it was a bona fide transaction the transfer of any land and the creation of any right or interest in or encumbrance on any land, made in any manner whatsoever, by any person held on first March,1967, an area equivalent to more than fifteen thousand produce index units (calculated on the b1asis of classification of soil as entered in the revenue records for Kharif 1966 and Rabi 1966‑67), shall be and shall be deemed always to have been void, ‑ and the land so transferred or the land on which the right, interest or encumbrance was so created shall be, and shall be deemed always to have been, owned or possessed, as the case may be, by the person by whom it was owned or possessed immediately before that date Provided that nothing in this clause shall apply to an alienation made by a person in favour of his heir."

From the notification reproduced above it is very much clear that Mr. Maqbool A. Sheikh, Officer‑on‑Special Duty, respondent had lawful H authority under paragraph No. 29 of M.L.R. I15 to pass the impugned order and as such point No. (i) raised by the learned counsel appears to be misconceived. As far the question raised at No. (ii) since the report of Inspection Team on which record was called for cannot be treated as an application by a person aggrieved, therefore, action taken by respondent would be a suo motu exercise of power as laid down in case 'Farooq Ahmad Khan Lagharf v. Muhammad Rashid (P b D 1981 Lah. 159).

5. Coming to point No. (iii), we find that it is now well‑settled; that the proceedings under M.L.R. 115 are taken for the purpose oft, ascertaining holding of declarant, so as to resume the excess land, if ' any, and as such the vendee or transferee from declarant and particularly in cases where there is no dispute between the vendors and vendees as to the existence of the transaction, cannot claim opportunity of being heard as a matter of right. This view finds support from case Sardar Shafique Haider Khan Laghari v. Member (Abdul Qayyum) Federal Lan Commission (P L D 1981 Lab. 356)'. As far point No. (iv), we find that since Mst. Hakim Bibi being wife 'of the deceased was an heir, therefore, the disputed mutations relating to the transactions of exchange by the declarant in her favour could not be looked into by the respondent on any ground and his action with regards to those transactions is obviously without jurisdiction. So far as the mutations of exchange in favour of Mst.1 , Hayat Bibi, the sister, we find that no doubt, a widow sister would be an heir under paragraph 7‑1 (b) of Regulation No. 115 but in the case in hand, there is nothing on the record to show that Mst. Hayat Bib was in fact a widow. So much so, that it has not been stated so in he ' writ petition. As far the bona fide of the transactions of exchange in favour of Mst. Hayat Bibi, the sister, and transaction of sale in favour of Muhammad Bakhsh, we find that the respondent who had exclusive jurisdiction has applied his mind to the factual and legal aspects of the case and bad given cogent reasons for the conclusion arrived at by him. The reasons given by him are recognized by explanation III t paragraph 7 of M.L.R. 115. As far mutation No. 241 of sale in favour of Muhammad Bakhsh, we are fully convinced that it was a fake transac tion. Strangely enough, the petitioner sold his land for Rs. 40,00 to Muhammad Bakhsh and on the same day got it back on mortgage for Rs. 60,000. Be that as it may, the fact remains that whether the disputed transactions of exchange and sale were bona fide or not, is a question of fact. and respondent No. 1 was quite competent to inves tigate into and hold the transactions other than the transaction in favour of wife, to be void. or not. For all these reasons, we do not find any substance in point No. (iv) raised by the learned counsel. As far the last point raised by the learned counsel that too, does not hold any water inasmuch as the determination of P. I. Units having already been done by D.L.C. on 10th April, 1974, it was not necessary for the respon dents to determine it again, particularly when the determination by the, D.L.C. was not challenged before him.

6. The upshot of the discussion is that the impugned order of the respondent to the extent of transactions of exchange in favour of Mst. Hakim Bibi, the wife is declared, to be illegal and without lawful autho rity but to the extent of the transactions of exchange in favour‑of Mst. Hayat Bibi., the sister and transaction of sale i.e. mutation No. 241, is well within authority.

7. We are fully conscious that Mst: Hakim Bibi, the wife has not filed appeal against the impugned order but since the impugned or erred as a whole has been challenged by Muhammad Iqbal in W.P. No. 823/78 therefore, we have considered the legality of the impugned order affecting the transactions of exchange in favour of the wife and having found the order illegal to that extent have declared the same to without lawful authority. This writ petition is disposed of accordingly.

M. Z. M. Petition disposed of.

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