' MUHAMMAD NAWAZ ABBASI, J.-- This appeal by the leave of the Court has been preferred against the judgment dated 1-11-1995 passed by a learned Single Judge of Lahore High Court, Rawalpindi Bench, in Writ Petition No,352 of 1983 filed against the orders, dated 19-3-1983 and 7-8-1983 passed by Additional Chief Commissioner and Federal Land Commissioner respectively.
2. The summary of facts in the background giving rise to this appeal are that Haji Khudadad Khan, deceased respondent, was owner of land in various villages of District Attock and his total holding as per calculation on 1-3-1967 was 15.692 P.I. Units. The deceased respondent gifted an area of 2291 P.I. Units in Village Khunda to one Javed Akhtar vide Mutation No,1414 dated 8-4-1971 and another area of 6276 P.1. Units to Major Taj Muhammad and Sahibzada Mehmood Bakhsh of Village Kamalpur Sher Jang vide Mutation No,25, dated 8-4-1971. The Deputy Land Commissioner during the scrutiny of the declaration filed by the deceased respondent under M.L.R.115, rejected the transactions by holding the gift mutation violative of M.L.R.115. The order of Deputy Land Commissioner of exclusion of mutations from consideration was further maintained in appeal and revision by the Land Commission authorities. The resumeable land of the declarant was calculated equal to an area of 2057 P.I. Units and he surrendered the entire area pertaining to Mutation No,1414 in Village Khunda under Land Reforms Regulation, 1972 and while exercising the choice, exchanged land of Mutation No,25, dated 8-4-1971 with the land of his daughter in Village Mirjal in terms of para.11 of the M.L.R.115 of 1972 and surrendered the excess area accordingly. On promulgation of Land Reforms Act, 1977, the Deputy Land Commissioner, with the inclusion of the land of Mutation No,25, calculated/determined the holding of Haji Khuda Dad Khan equivalent to 14,472 P.I. Units on 4-1-1977 and declarant had to surrender excess area to the statutory limit of 8000 P.I. Units. The declarant challenged the order passed by Deputy Land Commissioner under Land Reforms Act, 1977, through an appeal which was dismissed by the Land Commissioner vide order, dated 27-1- 1982 with the following observation:-- "7. Be that as it may, the adjustment. Of the possible claim of the daughter of appellant No,4 would have no bearing either on Mutation No,25 dated 8-4-1971 of Village Kamalpur Sher Jang in favour of appellants Nos.1 and 2 or on the entitlement and possession of tenant allottees of the area in Village Mirjal which she gave in exchange to her father and was surrendered by him for the purpose of Land Reform. Both the transactions of gift and surrender in Village Kamalpur Sher Jang and Mirjal have attained finality in law which cannot be disturbed. The father and the daughter can settle inter se. The matter is disposed of accordingly."
3. The declarant being not satisfied with the above order, filed a review petition and the Land Commissioner having considered the importance of the question raised in the review petition sent the matter to Chief Land Commissioner as in the limited power of review available to the Land Commissioner under Land Reforms Act, 1977, he could not grant the relief being sought in review petition. The Chief Land Commissioner referred the matter to Additional Chief Land Commissioner who in exercise of his suo motu revisional powers under Rule 13 of the Punjab Land Reforms Rules, 1977 , after hearing the parties vide order, dated 19-3-1983 declared the orders, dated 12-11-1979 passed by the Deputy Land Commissioner illegal and inoperative and held that the gift Mutation No,25, dated 8-4-1971 was intact and operative between the donor and the donee. The order, dated 27-1-1982 passed by the Land Commissioner was also set aside and in consequence thereto the exchanged land surrendered by the declarant which was allotted to the tenants reverted to him and its allotment stood cancelled. The Deputy Land Commissioner was directed to recalculate the holding of the declarant after excluding the area of land pertaining to gift Mutation No,25, dated 8- 4-1971. The appellants/allottees of land who were tenant of daughter of declarant before the exchange of land, filed a revision petition before the Federal Land Commissioner, Government of Pakistan which failed and was dismissed vide order, dated 7-8-1983 with the following observations:-- "The above argument is not relevant in this case because the so-called "implicit revocation" of the gift, if any, took place after the 4th January, 1977, and till the crucial date this land legally and physically belonged to Major Taj Muhammad Khan and Haji Khuda Dad Khan was nobody to declare it as his property."
' The appellants then assailed the orders passed by the Chief Land Commissioner and Federal Land Commissioner before the Lahore High Court, Rawalpindi Bench, through a Constitutional Petition bearing No,352 of 1983 and a learned Single Judge of the High Court vide judgment impugned dismissed the writ petition with the following observations:-- "10. After considering all the aspects of the case, I consider that Federal Land Commission had rectified a grave error committed by the lower functionaries and instead of perpetrating an injustice existence on the land owner, had passed orders which are not only just but were proper and in perfect accord with the law. The Deputy Land Commissioner had resumed land in the year 1977, whereas the correct legal position stood already expounded but the same was ignored by him. The petitioners have not been affected in any manner. Since they were not entitled to allotment of any land, no wrong had been done to them."
4. Leave in the present appeal was granted vide order, dated 12-5-1996 in the following terms:-- "Haji Khuda Dad Khan, the respondent herein had owned agricultural land in several villages in District Attock, which, on calculation, equaled to 15692 Produce Index Units on 1-3-1967. He gave his land against 2291 P.I.Us. As gift to Javed Akhtar in village Khunda on the basis of Mutation No,1414 having been attested on 8th of April, 1971. Similarly, he gifted another piece of land equivalent to 6276 P.I.US. To Major Taj Muhammad and Sahibzada Mehmood Bakhsh in Village Kamalpur Sher Jang vide Mutation No,25 which was attested on 8th of April, 1971. These two mutations were set aside by Deputy Land Commissioner holding that the same had been attested in violation of provisions of M.L.R.115. The validity of this order was assailed before the Chief Land Commissioner and Federal Land Commissioner by the respondent No,1 but he did not succeed. The Federal Land Commissioner held that the aforesaid owner had 16057 P.I.Us. An area against 2057 P.I.Us. Was thus resumed from his ownership under M.L.R.115. The owner surrendered the area which he had owned in Village Khunda in compliance with law. On the basis of order, dated 6th of February, 1973 passed by Federal Land Commissioner, the Patwari of the area cancelled Mutation No,25, dated 8th of April, 1971. Deputy Land Commissioner recalculated the area of the respondent by holding that he had owned 14472 P.I.Us. On 4th of January, 1977. This being the position the respondent was directed to surrender the excess land against 8000 P.I.Us. He complied with the order by surrendering the land of the value of 6472 P.I.Us. In several villages. While exercising his right of choice, he exchanged the land covered under Mutation No,25 with the land of his daughter He surrendered the said land treating it to be his own property. Deputy Land Commissioner order, dated 12-11-1979 was assailed by respondents Nos.1 to 4 by filing appeal which was dismissed by Land Commissioner on 27th of January, 1982. He held that the transactions relating to gift and surrender of land in Villages Kamalpur Sher Jang and Mirjal had already attained finality. The respondent filed review petition before the Land Commissioner who while realizing that Mutation No,25 which was attested on the basis of gift was violative of Land Reforms Act, 1977 and that being so, the said land had reverted to its original declarant. This case was referred to Chief Land Commissioner who, in turn, sent it back to the Additional Chief Land Commissioner, Punjab to settle it in exercise of his suo motu revisional powers. On 19th of March, 1983, Additional Chief Land Commissioner held that resumption of the land which was the subject-matter of the aforesaid gift, was illegal and as such it was set aside. It was clarified that Mutation No,25 remained intact and would bind the donor and the donee. The order, dated 27th of January, 1982 passed by Land Commissioner was also set aside. In the result, the land which was allotted to the petitioners as tenants under the Land Reforms Act, 1977 stood cancelled. A revision petition of the petitioners was dismissed by Federal Land Commissioner on 7- 8-1983. These orders were assailed through writ petition which was dismissed by a learned Judge of the Lahore High court, Rawalpindi Bench on 1-11-1995. This petition has been instituted for leave to appeal to call in question the validity of judgment of Lahore High Cotirt.
(2) It is argued by the learned counsel that order of Deputy Land Commissioner dated 28th of September, 1977 whereby he confirmed the exchange of land between the respondent No,1 and his daughter, Mst. Fakhar Sultan became final and as such, it could not be further assailed. Similarly, the order, dated 6th of November, 1973 passed by. Federal Land Commissioner about Mutation No,25 dated 8-4-1971 had also attained finality. In these circumstances, there was no authority vested in the Federal Land Commission to exercise suo motu powers to interfere in the order which had become final between the parties for all intents and purposes.
(3) The points raised need deeper examination. Leave to appeal is, therefore, granted to the petitioners. The interim relief already given on 15-4-1996 would continue till the final hearing of this appeal."
5. Learned counsel for the appellants has contended that deceased declarant Haji Khudadad Khan, having exchanged the land with the land owned by his daughter Mst. Fakhar Sultana in Village Mirjal under M.L.R.115, could not retrace his step on promulgation of Land Reforms Act, 1977 and was estopped by his conduct to change his position affecting the allotment of the resumed land in favour of landless tenants under para.18 of M.L.R.115 of 1972. Learned counsel added that the cancellation of Mutation No,25, dated 8-4-1971 having attained could not be reopened by the Chief Land Commissioner, Punjab, in exercise of his suo motu revisional power after expiry of the period provided under rule 13 of Punjab Land Reforms Rules, 1977. The learned counsel for the appellants while placing reliance on section 123 read with section 179 of Transfer of Property Act, 1882 contended that the gift of moveable property without a registered instrument would be invalid.
Therefore, it was wrongly held by the Land Commission authorities that the gift made vide Mutation No,25 was binding inter se the parties. The learned counsel lastly argued that it would not be legal to disturb the allottees/landless tenants of the land resumed under M.L.R.115 of 1972, in the subsequent proceedings under Land Reforms Act, 1977.
6. The learned counsel representing the respondents on the other hand has contended that order, dated 12-11-1979 passed by Deputy Land Commissioner through which the land, subject-matter of gift in question, was resumed under Land Reforms Act 1977, was illegal as the gift mutation would be ineffective only for the purpose of calculation of the holding of the declarant under M.L.R.115 of 1972 but the gift remained intact. The effect of non-exclusion of area of Mutation No,25 from the holding of declarant under M.L.R.115 of 1972 would not invalidate the gift and at the time of calculation of his holding under Land Reforms Act, 1977, the same was not property of declarant.
The learned counsel next argued that the order, dated 27-1-1982 passed by the Land Commissioner being against the provisions of Land Reforms Act, 1977 was rightly set aside by the Chief Land Commissioner exercising suo motu revisional jurisdiction and that the transaction of exchange of the land subject-matter of gift, between the declarant and his daughter under para.11 of the Land Reforms Regulations, 1972, would not ipso facto create right of allotment of exchanged land and on the exclusion of land of Mutation No,25 from the holding of declarant under Land Reforms Act, 1977, the allotment of exchanged land in their favour, would become ineffective.
7. Learned counsel while concluding his argument, has submitted that the gift in question would be ineffective only for the purpose of Land Reforms Regulation, 1972 but would remain operative between the parties and the functionaries of Land Commission having declared it invalid committed an illegality, therefore, the Chief Land Commissioner on reference sent by the Land Commissioner has rightly exercised his suo motu revisional jurisdiction and corrected illegality committed by the subordinate authorities.
' In support of the argument, the learned counsel has placed reliance on the following case-law:--
(1) Siraj Din v. Sultan and others PLD 1990 SC 95, (2) Mst. Karam Ilahi v. The State PLD 1974 Rev. 17, (3)
Mst. Raj Bibi v. Additional Chief Land Commissioner PLD 1975 Lah. 408 and (4) Muhammad Sabir v.
Shaheena Shamas-ul-Hasan 2000 M LD 1530.
8. We have heard the learned counsel for the parties at length and perused the record with their assistance. The sole point for determination would be relating to the exercise of suo motu revisional power by the Chief Land Commissioner in the matter, therefore, the controversial question as to whether the gift was valid or not would not be discussed. The exclusion of gift transaction for the purpose of Land Reforms Regulation, 1972 would not ipso facto invalidate the gift and make it ineffective between the donor and the donee. The object of examination of gift under Land Reforms Regulations, 1972 would be confined only to the extent of defining the holding of a declarant for the purpose of para.8 of said Regulation and therefore, the exclusion of gift from consideration by the functionaries of the Land Commission would not affect the gift mutation sanctioned under Land Revenue Act, 1967, therefore, the gift made by the declarant except for the purpose of Regulation 115 would remain valid and effective between the parties to the gift.
9. The exchange of land by the declarant in terms of para.11 of M.L.R.115 and the surrender of exchanged land being permissible, no right of ownership would be created in favour of the tenant of land, under para.18 of M.L.R.115 unless it ' was finally resumed. The land owner after exchange of land under para.11 of Regulation could exercise the option of surrender of exchange land, therefore, it would not be open to the Land Commission authorities to curtail the right of land owner to retain any land within the prescribed limits. Land Reforms Act, 1977 was promuigated under the scheme of land reforms and idea was to cut the size of individual holding to the prescribed limits on the basis of entries in the Revenue Recur on the date of commencement of said Act and the excess area was to be resumed in favour of Land Commission. In the present case, the land subject- matter of Mutation No,25 was not resumed under M.L.R.115 and remained in the ownership of donee till 24th July, 1977 i.e, much after the date of commencement of Land Reforms Act, 1977. Therefore, the validity of gift inter se parties would not be effected for the purposed of Land Reforms Act, 1977 for mere reason that it was not given effect under M.L.R.
115. The ownership of the land was in the name of donee on the date of commencement of Land Reforms Act, 1977, therefore, it being not the property of declarant, could not be included in his holding and as a result thereof, the allotment earlier made in favour of tenants would be annulled.
10. The next question would relate to the exercise of suo motu revisional jurisdiction by the Chief Land Commissioner. It is provided under Rule 13 of the Punjab Land Reforms Rule, 1977 promulgated under section 21 of Land Reforms Act, 1977 vide Notification, dated 28-3-1977 that the Chief Land Commissioner may at any time at his own motion our on an application made to him in that behalf within 20 days from the date of impugned order call for the record of any case or proceedings under the Land Reforms Act, 1977 which was pending before any officer for satisfying himself about the correctness of the order and may make fresh orders if deem fit. The gift mutation under discussion was cancelled by the concerned Patwari on 24-7-1977 on the basis of order passed by the Land Commission authorities under M.L.R.115 and in consequence thereto Deputy Land Commissioner included the area of gift mutation in the holding of declarant for the purpose of Land Reforms Act, 1977. The order of Deputy Land Commissioner was upheld by the Land Commissioner in appeal vide order, dated 27-1-1982 and the review petition filed by Haji Khuda Dad Khan (declarant) against the order in appeal remained pending with Land Commissioner, Rawalpindi, till 21-7-1982' on which date he sent the matter to the Chief Land Commissioner, Lahore.
The declarant having the impression that review was maintainable under Rule 12 of the Punjab Land Reforms Rules, 1977 filed a review petition against the order, dated 27-1-1982 passed by Land Commission within the time provided under Rule 13 of the above said Rules for moving an application to the Chief Land Commissioner for exercise of suo motu revisional jurisdiction. The Land Commission later having come to the conclusion that the review of the order under Rule 12 (supra), was not possible, sent the matter to the Chief Land Commissioner. Thus, the review petition would be treated as an application of declarant under Rule 13 of the above said Rules which was not barred by time. The suo motu revisional power is in the nature of inherent power and the exercise of such power for correcting an illegality or injustice done to a party would not be interfered by the High Court in its constitutional jurisdiction on technical grounds.
11. The order of Chief Land Commissioner having arisen out of the independent proceedings under Land Reforms Act, 1977 would have no nexus to the proceedings under M.L.R.115 of 1972, therefore, the contention of the learned counsel that Chief Land Commissioner exercised suo motu revisional power in the matter which was finalized under M.L.R.115 and was past and closed transaction, has no substance. The Land Commissioner on coming to know about the defect in his order brought it to the notice of Chief Land Commissioner for considering the same in exercise of jurisdiction under Rule 13 of the above Rules and thus, notwithstanding the technical objection that review was not maintainable, it remained pending before the Land Commission for disposal and the time taken in sending it to Chief Land Commissioner would not make the application time-barred.
12. The next contention that transaction of gift and exchange having attained finality under M.L.R.115 would not be relevant to calculate the holding under Land Reforms Act, 1977, has also no substance. The mutation of gift was still intact and ownership of the land in Revenue Record on the date of commencement of Land Reforms Act, 1977 was being shown in the name of donee, therefore, the land in question would not be part of holding of declarant. The appellants being tenants of the land owned by Mst. Fakhar Sultana, daughter of the declarant, were allotted the land in lieu of the land of their tenancy and due to the subsequent development taken place the land under allotment reverted to the original owner in the Revenue Record and in consequence thereto the appellants would seize to be the allottee of the land and retain their status of tenants as the land in their occupation prior to the exchange. In the light of foregoing discussion we hold that the High Court has rightly declined to interfere in the order passed by Chief Land Commissioner, Punjab, in exercise of his suo motu revisional jurisdiction and upheld by the Federal Land Commission vide order, dated 7-8-1983. We, therefore, without taking any exception to the judgment impugned, dismiss this appeal accordingly. The parties are left to bear their own costs.