' ABDUL HAYEE KURESHI, J.--On the conclusion of the hearing of the above cases we had allowed these petitions by quashing the impugned orders passed by Mr. Mohammad Irshad Khan, Officer- on-Special-Duty in the Federal Land Commission on 30-12-1976 (Petition No, D-202 of 1977) and on 8-10-1976 (Petition No, D-361 of 1977), respectively. We had left the parties to bear their own costs.
The reasons for the short order presently follow.
2. The facts in the two cases are that petitioner Shafi Mohammad together with his wife Mst. Shehar Bano, his brother Ghulam Mohammad and his brother's wife Mst. Zaibunnissa, owned agricultural land bearing 639 acres and 38 ghuntas in equal shares in Dali-Waddi in Tappo Tando Kaisar, Taluka Hyderabad, Sind. Petitioner Shafi Mohammad had gifted an area of 130 acres and 34 ghuntas in favour of his sister Mst. Amnat and his brother-in-law Abdul Wahab on 13-2-1971. Mst.
Shehar Bano, the wife of the petitioner had also made similar gifts in favour of her nephew Liaquat Ali and niece Mst. Feroze. All the four co-owners had a tractor which they had purchased from Messrs Ali Automobiles on 31-3-1959.
3. On the promulgation of Martial Law Regulation No, 115 (hereinafter referred to as the Regulation), the petitioner filed his declaration and claimed 500 extra produce index units for himself as also for each of the three remaining joint owners. The claim for additional 500 units was on account of the tractor and based on paragraph 8 (2) (i) of the Regulation, which reads as follows.
"8. Limits on individual holdings.-(1) ......................
(2) Notwithstanding the provisions of sub-paragraph (1), an owner may retain, out of the area of land he was holding immediately before the commencement of this Regulation, such additional area, if any which would bring the total area retained by him to the equivalent of fourteen thousand produce index units, if on the twentieth of December, 1971,-
(i) he owned an agricultural tractor, certified to be in good working order by an officer authorised by the Commission in this behalf."
' The case in relation to gifts made by the petitioner and his wife Shehar Bano was rejected. The holding of the petitioner and his wife Shehar Bano stood reduced to 12,500 produce index units for each. Out of this entitlement 500 produce index units were on account of the tractor. The petitioner and the co-owners were permitted by the Deputy Land Commissioner to remain joint holders in the property, although each one of them was allocated separate survey numbers.
4. Mst. Shehar Bano, the wife of the petitioner died on 29-7-1973 and the petitioner represented her in the case relating to entitlement before the Deputy Land Commissioner, Hyderabad. By an order dated 11-5-1974. Petitioner and his wife Shehar Bano was each allowed to retain 12,500 produce index units and excess area equivalent to 4,720 produce index units was resumed. The Deputy Land Commissioner, Hyderabad, took cognizance of the fact that the petitioner and his wife Shehar Bano had a 1-2 share each in the tractor. A notice was then issued to the petitioner by the Federal Land Commission proposing to exercise suo mow jurisdiction under paragraph 29 of the Regulation. It was stated in the notice "that the concession of tractor has been allowed wrongly by the Deputy Land Commissioner, as proper evidence has not been adduced." "The other ground was in regard to the failure to file some forms, which default was punishable under paragraph 30 of the regulation. For the purposes of the present petition were not concerned with the prosecution case.
The learned Officer-on-Special-Duty, by his order dated 30-12-1976, held that since the tractor was not registered in accordance with the section 2 (4) of the Motor Vehicles Ordinance, the person, who claimed to be its owner, could not be treated as its owner for the purpose of paragraph 8 of the Regulation. On such reasoning the entitlement of the petitioner and Mst. Shehar Bano was reduced by 500 produce index units.
5. The facts given in the petition bearing Constitutional Petition No, D-361 of 1977 are similar and the reasons for the suo motu revision as well as the orders in regard to entitlement by reason of possession of tractor are identical.
6. The short point in these cases is whether the petitioner and his wife Shehar Bano were entitled to additional equivalent area of 500 produce index units by reason of their having a tractor.
7. The fact of the petitioner and his wife each owning I share in tractor used for agricultural purpose is not in serious dispute. The Assistant Commissioner and Assistant Land Commissioner, Saddar, Hyderabad, had issued a certificate in Form L. R. VII which reads as under :-- Certificate "On the strength of evidence/proof produced before me and on verification of the above averments in L. R. VII, it is certified that the applicant Shafi Muhammad and other co-sharers namely Mst. Shehar Bano wife of Shafi Muhammad, (2) Ghulam Muhammad and Mst. Zaibunnissa wife of Ghulam Muhammad owned jointly an agricultural tractor (without registration and insurance) of Fordson Major make 51 H. P. Engine No, 1483187 R/R No, 44240 which was in good working order on 20th December 1971, as certified by the Mukhtiarkar of Taluka Hyderabad under his No, 613, dated 10th May 1972."
' The Deputy Land Commissioner, Hyderabad, who initially heard the case in regard to the declarations and entitlements also came to the conclusion that both the petitioner and his wife Shehar Bano had a 1-2 share in the tractor. By Notification No, SLC-1/72/7 the Sind Land Commission had delegated the power of allowing an existing owner to retain the area permitted under paragraph 8 of the Regulation in favour of the Deputy Land Commissioners. By another Notification bearing No, SLC3/72/843 the Sind Land Commission had declegated the power to issue certificates regarding tractors for the purpose of benefit of paragraph 8 of the Regulation to the Assistant Commissioner of the Sub-Divisions. Bye still another Notification bearing No, SLC- 1551/72/21/78 it was clarified that in cases of tractors being jointly owned by more than one person the benefit of additional 2000 produce index units had to be divided among the joint owners in accordance with their respective shares. By reference to these notifications it is very clear that if the petitioner could establish that he and his wife Shehar Bano owned a tractor in partnership with other sharers, they would be entitled to the benefit of additional area in accordance with their shares. The notifications also designate the Assistant Commissioner as the authority certifying the fact of ownership of a tractor It would thus seem that the certificate of the Assistant Commissioner and the order of the Deputy Land Commissioner were issued or made in proper discharge of their functions in an official and correct manner.
8. The learned Officer-on-Special-Duty in the order, which is impugned in Petition No, D-202 of 1977, has arrived at a different conclusion for the reason that only such person could be termed as owner of a tractor whose name is borne in the documents prepared under the Motor Vehicles Ordinance. The learned Officer. On-Special-Duty has relied on the provision of section 2 (24) of the Motor Vehicles Ordinance. To that extent Mr. Muhammad Ali Sayeed, learned counsel for the petitioners, had invited our attention to a judgment of the Supreme Court in the case of a Member Federal Land Commission, Rawalpindi v. Sardar Muhammad Ashraf Khan and another . The facts in this case were that respondent Sardar Muhammad Ashraf Khan had claimed the benefit of paragraph 8 (2) (i) of Martial Law Regulation No, 115 on the basis of the ownership of a tractor. The claim was rejected by the Federal Land Commission so that Sardar Muhammad Ashraf Khan invoked the constitutional jurisdiction of the Peshawar High Court. The High Court accepted the petition. The Federal Land Commission thereafter filed a petition for Special leave to appeal before the Supreme Court and Mr. Justice Ghulam Safdar Shah, who wrote the order on behalf of the Bench, observed as follows :- "The order of learned Member, Federal Land Commission says that 'the main question for determination is as to in whose name the tractor was registered'. From this premise, which was evidently misconceived, the learned Member found no difficulty to hold that since the tractor had been registered in the name of Muhammad Aslam, he alone would be its owner. It seems, however, that the learned Member had failed to take into consideration all the other evidence of which notice was taken in the High Court. And so it cannot be argued that the finding recorded by him was conclusive. On the contrary, in the High Court all these pieces of evidence were taken into consideration before reaching the impugned conclusion with which we respectfully agree."
It would appear that the mere fact of non-registration of a tractor in the name of the owner was not a conclusive factor in determination of the question of entitlement by virtue of paragraph 8 (2)
(i) of the Martial Law Regulation No,
115. The other evidence may be looked into for the purpose of determining the point in issue. The petitioner has placed before us a document relating to the purchase of the tractor, which shows that it was purchased by "Messrs Shafi Muhammad and others". The Assistant Commissioner had held inquiries and came to the conclusion that the petitioner and his wife Shehar Bano had a share in the tractor. The Deputy Land Commissioner also considered that aspect of the case and arrived at the same conclusion. In our view the learned Officer-on-Special Duty acted wrongly in disallowing the concession for the mere fact of non- registration of the tractor. It may be pointed out that in the order of the learned Officer-on-Special- Duty in the case of Shehar Bano the wife of petitioner Shafi Muhammad, which is the subject- matter of Petition No, D-361 of 1977, specific reference to the provisions of Motor Vehicles Ordinance has not been made but the tenor of The order indicates that the Member was not satisfied about Shehar Bano having a share is the tractor. This has only been pointed out to put the record straight but as otherwise the same reasons which have persuaded us to hold the order of the Officer-on- Special-Duty faulty in the case of Shafi Muhammad holds good even in the other case.1
9. In the result we allow both the petitions and declare, that the two orders passed by the Officer- on-Special-Duty, Federal Land Commission, in the case of State v. Shafi Muhammad and State v.
Shehar Bano, dated 30th December 1976 and 8th October 1976 respectively to be without lawful authority and of no legal effect. We shall leave the parties to bear their own costs. 4978 SCMR 153