1. ' ABDUL HAFEEZ MEMOM, J.-These 3 connected petitions arise out of the order dated 29th October, 1976 passed by the Officer on Special Duty, Federal Land Commission and involve common facts.
2. And points of law. They are accordingly being disposed of by this one judgment.
3. ' The relevant facts are that the declarant Haji Muhammad Dahar, petitioner in Petition No, 725/1976, being a Government servant and holding the post of Chief Engineer, Sukkur Barrage, Sukkur, filed his declaration the prescribed form L.R. IV as required by paragraph 12(1) (d) of M. L. R.
4. 115 (hereinafter referred to as the Regulation) wherein he disclosed his own land-holding as 112.6 acres, his wife's as 137 acres, his son's as 8-51 acres, his father's as 120 acres and his mother's as 137 acres. The land held by his father and mother was, however, shown by him in column 6 of the declaration form, meaning thereby that the said land had neither been acquired nor transferred by him to him within the specified period. The Deputy Land Commissioner, Sukkur, took up the scrutiny of the petitioner's declaration and during the proceedings the declarant reiterated that the land held by his parents had been acquired by them from the independent sources of his father who after retiring as Supervising Tapedar in the year 1960 had taken to farming and purchased an area of 41.38 acres in the year 1961 and an area of 68.11 acres in the year 1966 out of his own savings, commutation of pension, profits of his holding and his earnings from his business of running a cloth shop at Shikarpur for which he had been paying income tax, and, in support, produced the relevant documentary evidence.
5. ' The Deputy Land Commissioner after examining the revenue record and the income tax payment receipts held by the declarant's father produced before him felt satisfied that "the land held by the parents of the declarant was actually purchased from the independent sources of the father", and excluded it. With regard to the land held in the names of the declarant's wife and son, however, he held the same to have been acquired by the declarant and included it in his holding which thus having come to 267.111 acres, he allowed the declarant to retain 10 acres permissible under para. 10 of the Regulation and ordered resumption of the excess area of 157.111 acres by his order dated 28th May, 1972.
6. ' Similarly, the declarant Haji Muhammad Dahar's brother Bashir homed, being also a government servant filed his declaration in the prescribed from wherein he disclosed his own land-holding in column 5 as 138.22 acres and that if his mother in column No, 6 as 137 acres which he had transferred to her by way of sale on 15th November, 1970. He, however, claimed in the declaration that the land held by him and his other had been acquired by him before his entering into Government service on 20th January, 1969 and, therefore, it did not attract the Regulation. The Deputy Land Commissioner scrutinized. Bashir Ahmad's declaration and after being satisfied that the land shown by him in declaring form, including 137 acres transferred by him to his mother by way of sale, was proved to have been purchased by Bashir Ahmed in the years 1966 and 1968, before his entry into service during the period specified in the para. 10 of the Regulation and as such, his case did not attract the provisions of M. L. R.
115. Accordingly, by his order dated 7th June, 1972 he allowed Bashir Ahmed and his mother to retain the land held by them.
7. ' Subsequently, the Officer incharge Sind Inspection Team, Sukkur, while scrutinising the decision in the case of the declarant Bashir Ahmed observed that while it was correct that the land held by Bashir Ahmed and his mother was acquired by Bashir Ahmed before his entering into service, it was doubtful if he could have purchased the land from his own sources and remarked that the said land appeared to have been purchased in his name by his brother declarant Haji Muhammad Dahar, the Chief Engineer. On receiving such remarks of the Officer Incharge, Sind Inspection Team, the Land Commissioner, Sind, authorised review of the previous orders passed in the case of both the declarant Haji Muhammad Dahar and his brother Bashir Ahmed vide letters No, L C-9 (F L C) 14- 2142 and 9-L C/74-2347, dated 18th July, 1974 and 16th August, 1974, respectively.
8. ' In the review, the cases of both the declarants were re-examined by another Deputy Land Commissioner, namely, Mr. Allandino Memon, who held a fresh detailed enquiry in the matter during which detailed submissions, supported by documents, were made explaining when, where and how the lands in question had been acquired by the father of the declarants from his own independent sources. The learned Deputy Land Commissioner after examining the revenue record, the sources of income, the statement of income earned both from lands and business and the receipts of income-tax paid by the declarant's father Haji Muhammad Bux Dahar, held that he was convinced that declarants' father Haji Muhammad Bux had independent sources to acquire lands held by him in his own name and those held by his declarant son Bashir Ahmed before his entering into service. Accordingly, by his order dated 22nd December, 1974, the Deputy Land Commissioner maintained the previous orders passed.In the cases of both the declarants Haji Muhamad Dahar, the Chief Engineer, and his brother Bashir Ahmed. The Head of the Inspection Team, Sukkur Division, agreed with the abovesaid findings of the Deputy Land Commissioner and recommended that the cases of both the declarants be closed.
9. ' Notwithstanding above, the cases of both the declarants Haj Muhammad Dahar and his brother Bashir Ahmed were, once again, re-opened by the O. S. D. Federal Land Commission in exercise of his suo tofu powers under para. 29 of the Land Reforms Regulation, 1972. The O. S. D. Held to the affect that according to his interpretation of para. 10 of the Regulation all lands- acquired by any means whatever either in the name of the government servant or in the name of any of his heir subsequent to 1st January, 1959 and during the service tenure of the Government servant would be deemed as owned by the Government servant, irrespective of the means through which acquisition were made by the heir of the government servant and since the land shown to be held by the heirs of the declarant Haji Muhammad Dahar, including his father and mother, had been acquired subsequent to 1st January, 196 and during the service tenure of the latter, the entire lands were to be treated as the land owned by the declarant Haji Muhammad Dahar. Accordingly, by his order dated 29th October, 1976, he allowed the declarant Haji Muhammad Dahar to retain permissible 100 acres and ordered additional resumption of the 257 acres which were held by his father and mother in their own names and which had been held by the two Deputy Land Commissioners to have been acquired by them from the Independent sources of his father.
10. Aggrieved by the order of the 0. S. D., these three petitions were filed. Petition No, 726;1976 was filed by the declarant Haji Muhammad Dahar, the Chief Engineer, Petition No, 512/ 77 was filed by his mother Mst. Wallan and Petition No, 513/76 was filed by Mst. Wallan and others as heirs of Haji Muhammad Bux Dahar, father of the declarant Haji Muhammad Dahar.
11. ' The limited question for consideration in these petitions, therefore, is whether the 0. S. D. Acted with lawful authority in treating the lands owned and possessed by the father and mother of the declarant Haji Muhammad Dahar in their own names as the land of their son declarant Haji Muhamad Dahar under para. 10 of the Regulation and ordering its resumption thereunder.
12. ' Mr. Imam Ali Kazi, learned counsel for the petitioners, contended that the impugned order whereby the 0. S. D. Treated the lands held in their own names by the father and the mother as the lands owned by their son declarant Haji Muhammad Dahar and ordered its resumption, was based on misinterpretation of the provisions of para. 10 of the Regulation and on conjectures contrary to the proved facts on record and was, therefore, passed without lawful authority and was of no legal effect. He argued that on correct interpretation of para. 10 of the Regulation, the lands held by the heirs of a government servant in their own names between the specified period would not, ipso facto come within the mischief of para. 10 of the Regulation, but it is only when it is found to have been acquired by or with the sources of income of the government servant and is held by the heirs sort of benami for him that it can be treated as the land owned by the Government servant and resumed under the Regulation consequently, if the heirs of the Government servant prove to have acquired the land held by them from their own independent sources of income, the provisions of para. 10 would not be attracted to their land. To fortify his contention, the learned counsel further placed reliance on clause (4) of the Notification No, S L C-3668/ 72/2276, dated 17th July, 1972, issued by the Land Commission under the Regulation, which provided that if the heirs of a government servant have acquired any land through their own resources such land would not attract the application of para. 10 of the Regulation. That being so, the learned counsel further submitted, it having been proved to the utmost satisfaction or the two Deputy Land Commissioners that the lands held by the father and the mother of the declarant Haji Muhammad Dahar had been acquired by them from the independent sources of the father, the 0. S. D. Acted without lawful authority in treating their lands as owned by their son declarant Haji Muhammad Dahar, the Chief Engineer and ordering its resumption under para. 10 of the Regulation.
13. ' The contention of the learned counsel is well founded. Indeed, the learned counsel for the respondent also found himself unable to controvert the contention and stated that in view of the provisions of para. 10 read with clause (4) of the Notification dated 17th July, 1912,referred to above, he could not support the impugned order of the 0. S. D. And conceded to the petitions being allowed. Since the controversy centers round the interpretation of para. 10 the Regulation, it will be best to reproduce the relevant provisions of the para. Which read as under :- "10. Acquisition of land by Government servant.-(1) No person who is or has been in the Civil Service of Pakistan and has at any time between the 1st January, 1959, and two years of his ceasing to be in service, acquired any land or any right or interest therein, by any means whatever, either in his own name or in the name of any of his heirs or any other person, shall own or possess any land exceeding one hundred acres : ' Provided that, subject to the other provisions of this Regulation, any such person may, in addition to one hundred acres of land, own or possess any land which has devolved on him by inheritance or any other land not exceeding the area of the land so inherited, which has been acquired by him, in lieu of the land so inherited, whether by exchange or sale, either in his own name or in the name of any other person.
14. ' Explanation. -For purpose of this sub-para. And clause (d) of subpara. (1) of para. 12, "Civil service of Pakistan" means any civil service, post or office in connection with the affairs of the Federation or a Province, and includes, service as a Judge of the Supreme Court or a High Court, Comptroller and Auditor-General, Chief Election Commissioner and Chairman or Member of the Federal or a Provincial Public Service Commission, but does not include service as "President, Governor, Minister, Minister of State, or as a Speaker, Deputy Speaker or other Member of the National or a Provincial Assembly.
(2) Whether any person to whom the provisions of sub-para. (1) apply has within the period specified therein, transferred in favour of any of his heirs or has acquired in the name of any of them any land, and such land continues to be owned or possessed by his heirs, he shall for the purpose of that sub-para. Be deemed to be the owner of such land."
15. Scrutiny of the above provisions would show that under the para-graphs the lands owned and possessed by the heirs of government servant within the specified period will not, ipso facto, be treated as the lands of the government servant, but it is only when it has been acquired by the government servant, or, having acquired, has been transferred by him to any of them within the said specified period, and which they continue to own and possess, that it will be treated as the land owned by the government servant under the para. For the purposes of resumption under the Regulation. For, it will be noticed, the quintessence of the para. Is that the land should have been acquired by the government servant.
16. ' The word 'acquire' has been defined in the Shorter Oxford Dictionary, Volume I, to mean as to gain, or get as ones' own (by one's own' exertion or qualities)' ", in the Bellentines Law Dictionary as "to become owner of the property", and in the Concise Oxford Dictionary as "gain by one serf and for himself." Thus, in order to attract the provisions of the para. It will have to be shown that the land held by the heirs of the government servant during the specified period had been gained by or with the exertion, qualities or, we would add, resources of the government servant, before it can be treated as the land owned by the government servant for the purposes of resumption under the Regulation. If this interpretation of the para. Be correct, which we think it is, it would follow that if the lands held by the heirs of a government servant within the specified period are proved to have been acquired or gained by the B heirs through their own independent resources, it will not fall within the mischief of the para. 10 of the Regulation and would stand excluded.
17. ' Our view of the interpretation of the para. Stands fortified by clause (4) of the Notification dated 17th of July, 1972 issued by the Land Commission under the Regulation with the previous approval of the President of Pakistan expressly for the purpose, by way of clarification. It reads as under :- "No, S L C-3668/72-2276.-In exercise of the powers conferred on it under sub-para. (8) of para. 4 of Land Reforms Regulation, 1972 (M L R 115) as amended, and with the previous approval of the President of Pakistan, the Sind Land Commission with a view to remove difficulties in implementation of para. 10 of the Regulation is pleased to clarify that : ' That where the heirs of a government servant have acquired any land through their own resources such land would not attract the application of para. 10 of the Regulation."
18. ' Further, the very fact that the two Deputy Land Commissioners held detailed enquiries into the matter for ascertaining whether the lands held by the parents of declarant Haji Muhammad Dahar had been acquired by Haji Muhammad Dahar or by the parents from their own independent sources, would itself show that even the Land Commission accepted such interpretation of the para. As put by us, for, otherwise, there was no necessity of holding such inquiries.
19. ' The impugned order of the 0. S. D. Would, however, show that he interpreted the provisions of para. 10 to mean that the land held by the heirs of, a government servant during the specified period would, ispo facto, fall within the mischief of para. 10, even if it was proved by the heirs that the land held by them was acquired by them from their own independent sources. Such interpretation, however, as shown above, is not countenanced by para. 10 of the Regulation and clause (4) of the Notification referred to above, which does not appear to have been adverted to, much less considered, by the 0. S. D. We would, therefore, agree with the learned counsel for the petitioners that the interpretation put by the 0. S. D. On the para. 10 of Regulation in the instant case was misconceived and contrary to the express provisions of the Notification issued by the Land Commission, referred to above, which, admittedly, held the field and was binding.
20. ' That being so, the next question for consideration is whether, or not, the lands held by the parents of the declarant Haji Muhammad Dahar were acquired by them from their own independent sources of income.
21. Persual of the orders dated 28th May, 1972 and 31st May 1972 passed by the Deputy Land Commissioner Mr. Mazhar Rafi, C. S. P. In the c cases of both the declarants Haji Muhammad Dahar and his brothers Bashir Ahmed would show that it having been asserted in the declaration form that the land held by the parents of the declarants had been acquired by the parents from the independent sources of the father, the Deputy Land Commissioner held inquiry into the matter, and, after examining the relevant revenue record, the statements of income and the receipts of income tax paid by the declarants' father, he felt satisfied that the land held by the parents had been actually purchased from the independent sources of the father of the declarants. Thereafter, pursuant to the remarks made by the Federal Land Commission inspection Team, Sukkur, the land holding of the declarants and their parents was, once again, subjected to scrutiny by another Deputy Land Commissioner (Mr. Aliandino Memon) who held even more detailed inquiry, but he also was fully convinced on the basis of the record produced before him that the land held by the parents of the declarant had been gained by the from the proved independent sources of income of the declarants' father. Such being the finding of fact given by the two different Deputy Land Commissioners, the land held by the parents of the declarant Haji Muhammad Dahar, indeed, could not be said to fall within the mischief, of para. 10 of the Regulation and be treated as the land owned by the declarant Haji Muhammad Dahar and resumed under the Regulation, as was done by the O. S. D.
22. ' Further, yet another infirmity attaching to the- impugned order of the 0. S. D. Is that, though the land held by the parents stood mutated in their names in the revenue record, no notice was issued to any of them. That being so, the impugned order depriving the declarants' parents of their land was passed in violation of the mandatory provisions of the proviso to para, 29 of the Regulation, which provided that no order shall be passed under the said para. Without giving full opportunity of hearing to the person affected, as well as against the rule of natural justice, and thus suffered from lack of jurisdiction on this account as well.
23. ' For the aforesaid reasons, and keeping in view the statement made by the learned counsel for the respondent, we allow these petitions with costs, declare the impugned order passed by the 0. S. D.
24. Federal Land Commission to be without lawful authority and quash it.