Javed Iqbal, J.--This appeal with leave of the Court is directed against the judgment dated 28.3.2000 whereby the Writ Petition preferred on behalf of respondents has been accepted.
2. The leave to appeal was granted by means of order dated 20.6.2001 which is reproduced herein below for ready reference: "The point for determination in this case is as to whether the judgment of Shariat Appellant Bench of this Court reported as Muhammad Anwar versus Govt. of Pakistan (1994 SCMR 899) made applicable w.e.f. 28-2-94, can nullify the effect of gift dated 6.11.72. In other words whether the judgment referred to above would have 'retrospective application. Leave is granted to consider the above point".
3. The facts of the case have been mentioned elaborately in the judgment impugned and reproduction whereof would be of no use. The pivotal question which needs determination would be as to whether the Chief Land Commissioner had jurisdiction on 18.5.1995 to declare the gift in question invalid in view of the dictum laid down by this Court in case Muhammad Anwar v.
Government of Pakistan (1994 SCMR 899) whereby para 24 of MLR 115 was declared un-Islamic with effect from 28.2.1994. It is not disputed that registered gift deed was executed on 16.11.1972 and made part of revenue record by means of Mutation No. 1848 attested on 9.7.1973. Para-24 of MLR 115 is reproduced herein below for ready reference:-- "24. Restriction on alienation of holdings.--(1) No person owning more than the area of an economic holding shall be allowed to alienate by sale, mortgage, gift or otherwise any portion of his holding which may reduce the size of his holding to an area below the limit of an economic holding: Provided that such a person may alienate his entire holding.
(2)No person owning an economic holding should be allowed to alienate by sale, mortgagee, gift or otherwise any portion of his holdings: Provided that such a person may alienate his entire holding.
(3)No person owning more than the area of a subsistence holding but less than an economic holding shall be allowed to alienate by sale, mortgage, gift or otherwise any portion of his holding which may reduce the size of his holding to an area of subsistence holding: Provided that such a person may alienate his entire holding.
(4)No person owning an area equal to or less than a subsistence holding shall be allowed to alienate by sale, mortgage, gift or otherwise any part of his holding: Provided that he may alienate the entire holding or in the case of holding which is less than a subsistence holding, he may alienate any part of his holding by way of gift to any of his presumptive heirs or exchange with, or mortgage or otherwise alienate to, other powers or landless tenants of the same village, deh or mauza.
(5)Any alienation made in contravention of the provisions of this paragraphs shall be void.
(6)Nothing in this paragraphs shall apply to:-- (a)land, whether cultivable or other, which is bona fide required for the purpose of building thereon, and any tenant in possession of such land who refuses to quit after notices may be evicted under the orders of the Deputy Commissioner; (b)mortgages of land, without possession, in favour of Government or an institution owned, managed or controlled by Government; (c)cultivating lease of any part of his holding by a land-owner for a period not exceeding ten years; (d)the holder of a pre-emption decree in respect of an area less than a subsistence holding; (e)any land or part of any land situated within the jurisdiction of a Municipality, a Cantonment Board or an Improvement Trust and included in a House Building Scheme prepared or approved by such body; or (f)the alienation of lend in districts of Campbellpur, Rawalpindi and Jhelum in favour of a person certified by the Deputy Commissioner concerned to have been displaced from the Hazara District or Mardan District in consequence of the construction of the Trabela Dam."
4. A bare reading of para-24 of MLR 115 reveals that it has been couched in a simple and plain language. "Provisions of paragraph 24 of Land Reforms Regulation, 1972 (M.L.R. 115) forbade the alienation by sale, gift or otherwise of any portion of the holding of a person which might reduce the size of his holding to an area below the limit of an economic holding and also forbade a person owning an economic holding to alienate by sale, mortgage, gift or otherwise any part of his holding. It further provided that no person owning more than the area of a subsistence holding but less than an economic holding would alienate by sale, mortgage, gift or otherwise any portion of his holding which might reduce the size of his holding to an area less than the area of subsistence holding. Paragraph 24 placed no restriction upon a person owning more than an economic holding to alienate his entire holding and a person owning more than a subsistence holding to alienate his entire holding." (Zafar Iqbal v. Bashir Ahmed PLD 1989 Lahore 152). The provisions as contained in para-24 and discussed above being not in consonance rather in violation of Verses 7,29 & 32 of Surat Al-Nisa, Verse 188 of Al Baqarah, have rightly been declared as unlslamic.
5. Now here at this juncture the question arises as to whether all the above powers as conferred upon the Chief Land, Commissioner could have been exercised after the target date' i.e. 28.2.1994 as mentioned in Muhammad Anwar's case (supra) whereby Para-24 of MLR 115 was declared as un-Islamic, the answer would surely be in negative. A similar proposition was examined in case Sardar Ali v. Muhammad Ali (PLD 1988 SC 287), Sajwara v. Federal Government of Pakistan (PLD 1989 F.S.0 80), Muhammad Yousaf v. Government of Pakistan (PLD 1991 SC 760), Abdur Rehman v.
Muhammad Akram (1999 SCMR 100) and Sirajuddin v. Member Federal Land Commission (PLD 1996 Lahore 243) and the consensus seems to be that target date is to be followed. The learned Chief Land Commissioner had admittedly passed the order dated 18.5.1995 when para-24 of MLR 115 had already been declared un-Islamic and 28.2.1994 was fixed as target date i.e. date of implementation/application of said judgment. The only inescapable conclusion would be that the Chief Land Commissioner had no power on 28.5.1995 to exercise the powers conferred upon him under para-24 of MLR 115. The order dated 18.5.1995 passed by learned Chief Land Commissioner is not in consonance with the dictum laid down by this Court in Muhammad Anwar's case (supra) and, therefore, being unlawful it has rightly been set aside. The appeal being devoid of merit is dismissed.