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Constitutional Petitions Nos. D-125 and D-633 of 1977, decided on 22nd Sepetmber, 1983.

--Para. 7 (1) Federal Land Commission Letter No. F. 7 (4)/FLC/73, dated 20th August, 1973 at p. 200 of Sind Land Reforms Manual Vol. I, August, 1974 Edn. Sale or sale agreements where prior permis sion of Collector not obtained All transactions, held, to be re-opened and their genuineness examined and to be regularised if found genuine Case remanded for decision in terms of letter.

Mahfoozur Rehman Babu and 10 others v. Federal Land Commission and 3 others P L D 1980 Kar. 427 and Limo Khan and another v. Federal Land Commission and 3 others P L D 1981 Kar. 114 fol.

-- No one shall be condemned unheard Violation of Petitioner not served with any notice when case was heard and order passed Order declared as without lawful authority Provisional Constitution Order (1 of 1981), Art. 9.

Imam Ali Kazi for Petitioner.

M. I. Memon, A. A.-G. and Naqi Mirza for Respondents.

Date of hearing: 22nd September, 1983.

The petitioners through the above two petitions have impugned the common order, dated 9th September, 1976 passed by respondent No. 1.

The relevant facts leading to the filing of the above petitions are:

C. P. No. D-125/1977.-Respondent No. 4 through a registered sale agreement, dated 14th April, 1971 sold agricultural land measuring 94.32 Acres in favour of the four petitioners in equal shares at the rate of Rs. 775 per Acre amounting to Rs. 73,470. After promulgation of M. L. R. 115 respondent No. 4 filed declaration indicating inter alia the sale in question. The Land Commissioner, Sind, by his order, dated 2nd August, 1972 declared the above sale as valid in Case No. 359-3-LC/72. Respondent No. 1 in exercise of suo motu revisional power by this impugned order, dated 9th September, 1976 held that the transaction was not complete as there was no sale deed executed and registered. The petitioners, therefore, being aggrieved by the above order have filed the above petition.

C. P. No. D-633/1977. In the above case also respondent No. 4 sold agricultural land measuring 138.14 Acres in favour of petitioner No. 1 under a registered sale agreement, dated 5th October, 1967 for a sum of Rs. 1,29,575 out of which a sum of Rs. 95,000 were paid according to the averment in the petition at the time of the above sale agreement. The above sale transaction was held valid by the Land Commissioner, Sind, Hyderabad by his aforesaid order, dated 2nd August, 1972 in Case No. 359-3-LC/72. It further seems that petitioner No. 1 gifted the above land in favour of his minor sons petitioners 2 to 4 and his sister petitioner No. 5 on 26th April, 1973. Respondent No. 1 in exercise of suo motu revisional power by his aforesaid impugned order, dated 9th September, 1976 declared the above sale transaction as invalid. The petitioners, therefore, being aggrieved by the above order have filed the present petition.

2. Mr. Imam Ali Kazi learned counsel for the petitioner has urged as follows :

(i) That a sale agreement, if acted upon, for all intents and purposes is sufficient for the purpose of validating a transaction under para. 7 of M. L. R. 115.

(ii) that in any case the petitioners were not served with any notice prior to the passing of the impugned order.

Mr. M. I. Memon learned A. A.-G. who was appearing in Petition No. 125/1977 stated no instructions whereas Mr, Naqi Mirza who was appearing for the department in Petition No. 633/1977 also stated no instructions.

3. In support of the first contention Mr. Imam Ali Kazi has referred to the Federal Land Commission's circular contained at page 199 of the Sind Land Reforms Manual, Vol. I. August, 1974 edition in which it was provided that in case of sale or sale agreement where prior permission of the Collector was not obtained all the transactions were to be re-opened and their genuineness is to be examined and if they were found to be genuine they should be regularized. He has also referred to the case of Mahfoozur Rehman Babu and 10 others v. Federal Land Commission and 3 others (P L D 1980 Kar. 427) in which reference was made to the above circular and it was held that the Federal Land Commission misconstrued the above circular. This case was followed in the case Limo Khan and another v. Federal Land Commission and 3 others (P L D 1981 Kar. 114).

4. As regards the above second contention it will suffice to observe that the respondents haves not filed any counter-affidavits to refute the averments of the petitioners that they were not served with any notice prior to the date of order when the above case was heard by respondents No. 1. The validity of gifts made by petitioner No. 1 in favour of Petitioners 2 to 5 on 26th April, 1973 is not relevant for the purpose of deciding the above petition. They filed the petition as according to them they were entitled to be heard before the passing of the impugned order.

5. We would allow the above petitions and declare the impugned order as without lawful authority and of no legal effect. The cases are remanded to the Federal Land Commission with the direction to decide the cases in terms of the decision contained in letter No. F. 7 (4)FLC/73, dated 20th August, 1973 referred to hereinabove and published in the Sind Land Reforms Manual Vol. I August, 1974 edition at page 200. In the circumstances of the case there will be no order as to costs.

M. B. A. Case remanded.

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