1. ' ABDUL HAFEEZ MEMON, J.-This petition is directed against the order dated 21-12-1976 passed by the
0. S. D. Federal Land Commission in suo motu revisional jurisdiction under paragraph 29 of the Land Reforms Regulation, 1972, hereinafter referred to as the 'Regulation'.
2. ' The relevant facts are that the petitioner Government servant filed his declaration in the prescribed form disclosing his entire holding of agricultural lands as required by the Regulation.
3. The Deputy Land Commissioner, Hyderabad, scrutinized the declaration under paragraph 10 of the Regulation and by his order dated 9-10-1973, allowed the petitioner to retain, in addition to his inherited land, 138.36 acres out of 333.1 acres held to have been acquired by him, and directed resumption of the excess 194-05 acres 01' land.
4. ' The above-said area of 138.36 acres which the petitioner was allowed to retain included 16.26 acres on account of his owing and possessing a tractor certified by the Assistant. Commissioner, Hala. And 22.10 acres in lieu of petitioner's share of an equal area in the inherited land acquired by the Government in the year 1960 for Public School, Hyderabad, as against 49.4 acres claimed by the petitioner as being the land purchased by him in lieu of and with the compensation money received by him from the Government on account of the acquisition of his share of 22.10 acres in the inherited land. Being dissatisfied with the order of the Deputy Land Commissioner, petitioner went in appeal before the Land Commissioner who allowed the appeal by his order dated 16-5- 1973 and allowed the petitioner to retain the entire area of 49.4 acres, instead of 22.10 acres only, in lieu of his ancestral land acquired by the Government, on the ground that from the amount of Rs, 18,912 received by the petitioner by way of compensation he could have purchased the area of 49.04 acres claimed by him. The Land Commissioner further allowed the petitioner's claim to another land measuring 42.10 acres situated in Deh Dhandhi, Taluka Tando Muhammad Khan as his ancestral land (not involved in this petition). Later petitioners case was re-opened by the 0. S. D.
5. Federal Land Commission in exercise of suo motu powers of Revision under paragraph 29 of the Regulation and he, by his impugned order dated 21-12-1976, held that under paragraph 10 of the Regulation the petitioner was entitled to 100 acres only and thereby disallowed retention of additional 48.04 acres by the petitioner in lieu of his inherited land acquired by the Government, on the ground that it had been acquired by him during his service. The 0. S. D. Further disallowed the tractor concession of 16.26 acres granted to the petitioner, on the ground that the tractor was not registered in the name of the petitioner on the relevant date. Hence this petition.
6. ' Mr. Imam Ali Kazi, learned counsel for the petitioner, contended that under the proviso to paragraph 10 of the Regulation, the petitioner was in any case entitled to retain 22.10 acres out of 49.04 acres purchased by him in lieu of 22.10 acres of his inherited land acquired by the Government in 190, and therefore, the 0. S. D. Acted illegally and without lawful authority by disallowing him even the 22.10 acres to which he was legally entitled. Mr. Kazi next contended that the 0. S. D. Also acted illegally in disallowing the petitioner the tractor concession of 16.26 acres, in that, the petitioner had successfully proved on record that he had purchased the tractor from its owner and was in his possession and was in working order on the relevant date as certified by the Assistant Commissioner, Hala, which certificate was final and was not open to question.
7. ' We find both the contentions of the learned counsel to be well-founded, and the same were also very rightly conceded to by the learned counsel for the respondent. Relevant provisions of paragraph 10 of the Regulation read as under:- "10. Acquisition of land by Government servants.-(1) No person who is or has been in the Civil Service of Pakistan . And has at any time between first January, 1959, and two years of his ceasing to be in service, acquired any land or any right or interest 'therein, by any means whatsoever, 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."
8. ' It will be seen from above that the proviso indeed permits a Government Servant to hold an equivalent area of land, acre wise, acquired by him by sale or exchange in lieu of his inherited land, in addition to 100 acres allowed to him under sub-paragraph (1) of paragraph 10 of the Regulation.
9. It is an admitted position in the instant case that the Government had acquired 22.10 acres of the petitioner's inherited land for the Public School, Hyderabad, and that the petitioner, in lieu thereof, could and had parch acres of the land, situated in Deh Saeedpur, taluka District Hyderabad, out of the sale price received by him for those 22.10 acres of his inherited land. That being so, the petitioner was, indeed, entitled to additionally retain an equivalent area of 22.10 acres out of the above-said 49.04 acres purchased by him, as provided by the proviso to paragraph 10 of the Regulation, reproduced above. Accordingly, the Land Commissioner, Sind, as well as the 0. S. D., Federal Land Commission both acted illegally, inasmuch as, the former allowed the petitioner to retain the entire 49.04 acres and the latter denying the petitioner even the 22.10 acres which he was legally entitled to retain out of those 49.4 acres. As to 16.26 acres allowed to the petitioner by the Deputy Land Commissioner, as well as the Land Commissioner, Sind, on account of his owning and possessing the tractor certified by the Assistant Commissioner, Hala to be in working order on the relevant date, the 0. S. D. Disallowed the said concession on the sole ground that on the relevant date the tractor was not registered in the name of the petitioner as required by section 2(24) of the West Pakistan Motor Vehicles Ordinance, 1965. This however is not the correct legal position in the context of the requirements of the Regulation and the Notifications referred to by the learned counsel, and the O. S. D. Has misdirected himself in that behalf. It is not disputed that the petitioner had purchased the tractor from one Mirza Saeed Ahmed on 5-2-1971 for a valuable consideration for which he held the receipt in his name and that, possession of it was also delivered to him. Further, the Assistant Commissioner, Hala, after examining the record and the documents produced before him by the petitioner alongwith form L. R. VII and verifying the facts, had certified that the petitioner was the owner of the tractor which was in good working order on 20-12-1971, and the correctness of this certificate issued by this Authorised Officer under the Regulations was not disputed even by the 0. S. D. It is further shown that subsequently the tractor was also registered in the name of the petitioner. That being so, the petitioner was in the owner of the tractor on the relevant date within the meaning of the provisions of the Regulation and the said notifications and was thus entitled to the additional area of 16.26 acres, allowed to him by the Deputy Land Commissioner and the Land Commissioner, Sind. The O. S. D. Federal Land Commission, therefore, acted illegally in depriving the petitioner of the said area on the untenable ground. For support, if any is needed, reference may be made to a D. B. Decision given by this Court in Constitution Petition No, 292 of 1977, reported as PLD 1979 Note 83 at p. 58 which fully covers the point in hand.
10. ' For the aforesaid reasons, we allow this petition, declare the order of the 0. S. D. Federal Land Commission as illegal and void and quash it. In the result of or allowing this petition, the order of the Land Commissioner, Sind, would stand restored with only this modification that instead of 49.04 acres allowed by him by the Land Commissioner, Sind petitioner will be entitled to retain only 22.10 acres out of the said 49.04 acres, purchased by him in lieu of his inherited land. In the circumstances, the patties will bear their own costs.