' FAQIR MUHAMMAD KHOKHAR, J. ---These petitions under Article 188 of the Constitution of Islamic Republic of Pakistan, read with Order XXVI of the Supreme Court Rules, 1980, are directed against judgment dated 19-3-2002, passed by this Court whereby Civil Petitions for Leave to Appeal Nos.1252-L and 1253-L of 2001 of the petitioners were dismissed:
2. Talib Mehdi Khan (the respondent No,7) husband of the petitioner, filed a declaration of his land holding measuring 324 acres and 6 Kanals in village Kondal Khokharan, Tehsil Shorkot, District Jhang, as required by section 7 of the Land Reforms Act Noll of 1977. (hereinafter referred to as the Act). The Deputy Land Commissioner, Jhang, by orders dated 22-10-1977 and 13-4-1980 determined the land holding of the said declarant equivalent to 13718 P.I Units which was in excess of the maximum ceiling of 8000 P.I. Units fixed by section 3 of the Act. Therefore, excess land measuring 1127 Kanals and 15 Marlas was resumed after the declarant had exercised his choice for its surrender.
3. The resumed land was subsequently allotted to the contesting respondents Nos.1 to 6 (in C.R.P.
No,124-L of 2003) and respondents Nos.1 and 2 (in C.R.P. No,125-L/2003) being sitting tenants. The petitioner woke up after a deep slumber of about seven years. She preferred an appeal before Land Commissioner, Faisalabad Division on 30-9-1998, to call in question the validity of order dated 22-10-1977 of the Deputy Land Commissioner, Sargodha. She claimed that out of the resumed land, her husband, the declarant had already gifted to her his land measuring 846 Kanals and 11 Marlas on 18-11-1976 in lieu of her dower by incorporating the same in Nikahnama and that she had also obtained a consent decree from the Civil Court, in her favour, in respect of the said land. The Land Commissioner, Faisalabad Division, dismissed the appeal of the petitioner, by order dated 12-11- 1989. She filed a revision petition thereagainst which was dismissed by the Chief Land Commissioner, Punjab, vide order dated 25-11-1993. Thereafter, she moved a second revision petition before the Federal Land Commission, .Which was accepted by order dated 22-12-1994, whereby the gift of the land in question was declared to be valid.
4. The respondents Nos.1 to 6 (in C.R.P.No,124-L/2003) and respondents Nos.1 and 2 (in C.R.P. No, 125- L/2003), being allottees of the resumed land filed Writ Petitions Nos.7062 and 7075 of 1996 against the order dated 22-12-1994 of the Federal Land Commission. The same were accepted by a learned Division Bench of the Lahore High Court, Lahore, .By common judgment dated 27-3-2001.
Consequently, theorderdated 22-12-1994 passed by the Member, Federal Land Commission, was declared to be without lawful authority and of no legal effect. Therefore, the petitioner filed Civil Petitions Nos.1252-L and 1253-L of 2001 for grant of leave to appeal which were dismissed by this Court, by the impugned judgment dated 19-3-2002. Hence these review petitions.
5. The learned counsel for the petitioner argued that this Court had fallen into error by applying the provisions of paragraph-7 of the Land Reforms Regulation, 1972 (M.L.R. 115). The transaction of gift of the land by the declarant in favour of the petitioner in lieu of dower had taken place on 18-11-1976 which were governed by the provisions of section 6 of the Land Reforms Act, 1977 which were drastically different in substance from the provisions of paragraph-7 of the Regulation. There was no condition or requirement under section 6 of the Act for bona fide transaction of the transfer of the land. Therefore, transaction of gift in lieu of dower could not be brushed aside on the considerations of paragraph 7 of the Regulation. The gift of the property in dispute in lieu of dower had been duly reflected in the Nikahnama dated 18-11-1976. The learned counsel lastly submitted that this Court had already granted leave to appeal in Civil Petition No,1417-L of 2002 in a matter involving the interpretation of the various provisions of the Land Reforms Act and also as to the effect of decision of this Court in Qazalbash's case PLD 1990 SC 99. The learned counsel relied on the case of Muhammad Yousaf Khan versus The Chairman, Federal Land Commission and others 1988 SCM R 611 in support of his submission .
6. On the other hand, the learned counsel for the contesting respondents/tenants/allottees argued that this Court had refused to grant leave to appeal in both the cases after due consideration of all the points which were raised by the learned counsel for the petitioner and that the review could not be sought in order to enable the petitioner to re-argue the whole matter without there being any error apparent on the face of the record.
7. The learned counsel for the declarant Talib Mehdi Khan, respondent No,7, conceded the claim of the petitioner.
8. The learned counsel for an applicant-Imam Baldish in C.M.A. No,1215-L of 2004 submitted that the said applicant was a tenant eligible for allotment of the resumed land whose interests would be adversely affected in case the review petitions of the petitioners were accepted.
9. We have heard the learned counsel for the parties and have also perused the available record.
We have already observed in the impugned judgment under review that the respondent No,7, in his declaration had shown the disputed land as a part of his holding without making anymention of the gift thereof at that time. He had also exercised his choice for the surrender of the land being an excess area. Neither the petitioner nor the declarant had ever approached the Revenue Authorities for attestation of the mutation of gift of the land. The entries of so-called gift of land in question, in lieu of dower, in the Nikahnama did not see the light of the day for about seven years and were not reflected in the revenue record of rights. At no stage of proceedings, did the petitioner claim that she had paid any land revenue or had received any share produce for the tenants in respect of the disputed land. We have already taken the view that the petitioner had failed to substantiate the genuineness of the transaction of the gift. The Deputy Land Commissioner, Jhang, in his order dated 22-10-1977, had also recorded a finding of fact that the declarant had not made any transaction of alienation or transfer between 20-12-1971 to 4-1-1977. In a similar case of Dhani and others versus Senior Member Federal Land Commission, Rawalpindi and others 1990 SCM R 478 the plea of gift of agricultural land was not accepted in the context of the Land Reforms of 1977 in the absence of proof of attestation of mutation, non-payment of land revenue and, share produce.
Reference may also usefully be made to the case of Sultan Muhammad Khan and another versus The Federal Land Commission and 4 others 1983 SCM R 797. The case of Muhammad Yousaf Khan (supra) relied upon by the learned counsel for the petitioner is distinguishable from the facts of the present case inasmuch as in the precedent case, the declarant therein had consistently claimed the benefit of the alienation of the land by way of gift in favour of his wife. Needless to observe that the consent decree was obtained by the petitioner in respect of the land in dispute without impleading the functionaries of the land reforms. In the present case, decisive steps were taken by the authorities concerned and the land was resumed and further allotted to the tenants before the judgment in Qazalbash's case became operative. Mere grant of leave to appeal in some other case is to be no ground to recall and reverse the leave refusing order in these cases.
10. Now, we have to examine the other questions as to the applicability of provisions of section 6 of the Land Reforms Act, 1977 and paragraph 7 of the Land Reforms Regulation, 1972. Section 6 of the Act is reproduced below for facility of reference:-- "Certain Transfers void.--- (1) The transfer of any land, and the creation of any right or interest in, or encumbrance on any land, made in any manner whatsoever in respect of any area, on or after the commencement of this Act by any person holding immediately before that date an area exceeding his entitlement under section 3, and be and shall be deemed always to have been void, and the land so transferred or encumbered shall be deemed 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.
(2) Nothing in subsection (1) shall apply to any transfer of land or the creation of any right or interest in or encumbrance on any land left with a person after he has surrendered the land in excess to his entitlement under this Act."
' It would thus appear that the said provision would apply to treat as void, any alienation of land or creation of any right or interest or encumbrance in or on any land made on or after the commencement of the aforesaid Act by any person holding immediately before that date of an area exceeding his entitlement under section 3 of the Act. In the present case, the alleged transaction of gift could not be said to have taken place after the commencement of the Act i,e, 5- 1-1977. Therefore, it does not stand to reason as to how the petitioner could press into service the aforesaid provision. According to his own declaration, the land of the declarant was worked out as equivalent to 13718 P.I. Units which was more than the ceiling of 8000 P.I. Units fixed by section 3 of the Land Reforms Act. Therefore, the land of the declarant to the extent of 5718 P.I. Units was resumed. It may be mentioned that the land holding of the declarant, husband of the petitioner, also exceeded the permissible limit of 12000 P.I. Units of land in terms of paragraph-8 of the Land Reforms Regulation, 1972. Since the alleged alienation by way of gift by the declarant in favour of the petitioner, was purported to have been made on 18-11-1976, "therefore, the following guidelines as enumerated in Explanation No,III of paragraph-7 of the Land Reforms Regulation were legitimately taken into consideration:-- "In determining whether a transaction referred to in clause (b) of paragraph (1) was bona fide or otherwise, the Commission shall, among other matters, take into consideration the following factors:--
(i) Whether adequate consideration had been paid by or on behalf of the person in whose favour the transfer has been made or any right, interest or encumbrance has been created;
(ii) Under whose management the land has remained which is claimed to have been transferred or in respect of which any right, interest or encumbrance has been created;
(iii) Who has been paying the land revenue and other charges in respect of such land;
(iv) Who have been receiving the rent for or batai share from such land.
The provisions of paragraph-7 of the Regulation were attracted to an alienation of land made on or after 20th day of December, 1971, by a person holding immediately before that date an area of more than one hundred and fifty acres of irrigated land or three hundred acres of un-irrigated land or an area equivalent to twelve thousand P.I. Units. Even under the Muslim Law, in the case of Hiba- bil-, a bona fideintent on the part of the donor to divest himself in present of the property and to confer it upon the donee is an essential for its validity. In our opinion, the factum and genuineness of the Hiba-bil-Iwz was not established by the petitioner for the limited purpose of operation of the Land Reforms.
11. The agrarian reforms were introduced in this country, from time to time, in order to provide social and economic justice to the actual tillers of the land so as to achieve declared objectives of the constitution makers. The Constitution as well as Islam conceive a society which is free from exploitation, social and economic. Injustice. The Preamble and Objectives Resolution as incorporated in Article 2-A of the Constitution clearly lay down that it is the will of the people of Pakistan to establish an order wherein principles of democracy, freedom, equality, tolerance and social justice, as enunciated by Islam, shall be fully observed. Article 3 of the Constitution mandates the State to ensure elimination of all forms of exploitation. Article 38 of the Constitution enjoins the State, inter alia, to secure welfare of the people by raising their standard of living, by preventing the concentration of wealth and means of production and distribution in the hands of a few to the detriment of general interest by ensuring equitable adjustment of rights between the landlords and tenants and by reducing disparity in income and earnings of individuals. The Parliament is empowered, by virtue of Article 253, to prescribe the maximum limits as to property or any class thereof which may be owned, held or possessed or controlled by any person. The said provision further provides that any existing law permitting a person to own or possess beneficially an area of land greater than that shall be invalid. The individual interests being subservient to the collective rights of the society are required to be adjusted accordingly. As set out in Chapter 2 (Principles of Policy) of the Constitution, the State must strive to achieve 'the greatest happiness of the greatest number. Unfortunately, the land reforms were not carried out faithfully and wholeheartedly. Their process was alwayssubverted and frustrated-for oblique considerations through various devices and mechanisms. The Federation and the Provinces are at liberty to make necessary remedial Legislation for the purpose of land returns by removing the defects E which were pointed out by this Court in Qazilbash Wakf cases PLD 1990 SC 99 and 1993 SCM R 1697) in the light of mandatory Injunctions of Islam.
12. By majority, we had dismissed these review petitions, by our short order dated 9-12-2004 as under:-- "We have heard the learned counsel for the parties at length.
2. Contentions raised by learned counsel for the petitioner have no merit as such no case for review is made out, consequently, both review petitions are dismissed. Detailed reasons to be recorded."
13. However, one of us, Mr. Justice Muhammad Nawaz Abbasi, J., recorded his following note:-- "The questions of law raised in these review petitions, were not considered in the main judgment, therefore, I would like to add my dissenting note in the legal issues."
14. The above are the reasons for the dismissal of the review petitions by majority.