' NASIR SAEED SHEIKH, J.---Mst. Ghulam Sahira the petitioner No,1 is the mother of petitioners Nos.2 to 6 and is resident of village Vehoa Tehsil Taunsa District Dera Ghazi Khan. She was owner of 896.562 acres of land situated in two districts i,e, 886.216 acres of land in D.G. Khan and 10.344 acres of land in District Sahiwal. She filed a declaration form LR-I under the provisions of Martial Law Regulations (115) of 1972 as amended. In the declaration form submitted by her an alienation of land measuring 610 acres was claimed to have been made as a transaction of sale to the petitioners Nos.2 to 6 vide mutation No,2633 sanctioned and incorporated in the revenue record on 2-6-1971. This transaction of sale was effected by the petitioner No,1 as per mutation for a sum of Rs,23,000 in the presence of her husband Sardar Abdul Ghafoor. The declaration form submitted by the petitioner to the Land Commissioner D.G.Khan was scrutinized and the Land Commissioner .Multan Division Multan vide order dated 15-6-1972 declared the sale transaction of 610 acres of land in favour of her children by the petitioner No,1 to be not a genuine transaction and was accordingly declared invalid. An appeal was preferred by her against this order dated 15-6-1972 and was heard by Additional. Chief Land Commissioner Punjab, Lahore and was allowed vide order dated 11-7-1973. The Additional Chief Land Commissioner Punjab held the transaction of mutation of sale to be genuine and the order of Land Commissioner dated 15-6-1972 was set aside. On the basis of this order of the Additional Chief Land Commissioner the Deputy Land Commissioner D.G.
Khan declared that no area is to be resumed from the ownership of the petitioners as after the sale the remaining area left with the petitioner No,1 was found to be 286.344 acres which was below the ceiling of 12000 produce index units.
2. The Inspection Team of the Federal Land Commission scrutinized the record of the writ petitioner Mst. Ghulam Sahira and the Member Federal Land Commission vide order dated 28-12-1976 exercising suo Motu powers of revision under Para-29 of MLR-115 declared the alienation, of 610 acres of land by the petitioner No,I in favour of her children to be void. The reasons forming basis of the order dated 28-12-1976 as stated in the order are that the transaction of sale was in favour of the minor children and there was nothing on the record to prove that the minors had any independent means to provide for the sale consideration of the sale transaction and that even the possession of the subject land was not shown to have been passed on to the minor vendees before the crucial date i,e, 20-12-1971.
3. Through the instant writ, petition the order dated 28-12-1976 of the Federal Land Commissioner has been assailed.
4. Para wise comments were requisitioned.
5. During the pendency of the writ petition another important development took place that the P.I.Units of the petitioner No,1 were recalculated by the Deputy Land Commissioner D.G. Khan vide order dated 6-7-1977 and the total ownership of Mst. Ghulam Sahira was declared to be 869.562 acres in both the districts of D.G. Khan and Sahiwal District which were found equivalent to 11846 PIUs which units were otherwise found to be below the ceiling of 12000 PIUs as fixed under MLR-115.
These facts were brought on the record through an amendment of the writ petition which amended writ petition dated 7-6-1978 is available on the record.
6. This Court also requisitioned the original, record of the Federal Land Commission Authorities to peruse the same as the documents annexed with the writ petition which pertain to the year 1977 were partly torn. The record requisitioned has been made available to this Court and has been perused.
7. It is contended by the learned counsel for the petitioners after relying upon the judgments reported as FEDERAL LAND COMMISSION V. SARDAR MUHAMMAD AURANGZEB KHAN AND 5 OTHERS (1997 SCMR 911), FEDERAL LAND COMMISSION AND OTHERS V. S. GHULAM NABI SHAH AND OTHERS (1989 SCMR 210), LAL CHAND AND 2 OTHERS V. OFFICER ON SPECIAL DUTY, FEDERAL LAND COMMISSION AND 3 OTHERS (1984 CLC 2396), JALALUDDIN ZAFAR AND 2 OTHERS V. THE STATE (1987 CLC 32), IBRAHIM V. MST. WAZIR BEGUM (PLD 1967 LAHORE 1087), SARDAR ABDUL GHAFOOR KHAN AND 3 OTHERS V. THE FEDERAL LAND COMMISSION, ISLAMABAD (PLD 1979 LAHORE 375), MUHAMMAD SHAFIE ULLAH V. THE GOVT. OF PAKISTAN AND OTHERS PLD 2002 Pesh. 50 and BARKAT ALI AND OTHERS V. SAKHI MUHAMMAD AND OTHERS (2005 YLR 2689) that Federal Land Commission has no jurisdiction to question the genuineness of a transaction of sale effected in between the period 1-3-1967 and the 19th December 1971 both days inclusive by a declarant under the MLR 115 and that in such like transactions it was not necessary that the change of possession be always shown to have been effected in favour of the children of the declarant.
8. The learned Legal Advisor of the respondent contended that para-7 of the MLR-115 in its proviso-I only permitted the transfer of land or creation of right or interest by way of gift in favour of heirs of the declarant. The Legal Advisor argued that the use of the term "or otherwise" after the term "gift" is to be interpreted on the principles of ejusdem generis and a transaction of sale cannot be included therein. The learned counsel also argued that as admittedly the transaction of the sale was made in favour of the minors therefore the question of payment Of any sale consideration by such minors is beyond the comprehension therefore the Federal Land Commission rightly declared the transaction of sale effected through the mutation in question invalid and a lawful - order was passed by the Federal Land Commission for the resumption of the land of the petitioner No, 1 .
However during the arguments the learned counsel for the respondent also confirmed that in recalculation process effected upon the direction Of the Federal Land Commission the produce index units of the petitioner No,1 were found to be 11846 which fact was borne out from the record.
The learned counsel for the respondent relied upon the judgments reported as MST. ZUBEDA BEGUM V. CHIEF LAND COMMISSIONER, PUNJAB, LAHORE AND OTHERS (1988 SCMR 1798), FEDERAL LAND COMMISSION, CABINET SECRETARIAT, ISLAMABAD V. SARDAR NOOR AHMED KHAN AND 7 OTHERS (1999 SCMR 2697), SARDAR SHAFIQ HYDER KHAN LEGHARI V. MEMBER (ABDUL QAYYUM), FEDERAL LAND COMMISSION (PLD 1981 LAHORE 356), MST. SANAM IQBAL V. CHAIRMAN FEDERAL LAND COMMISSION AND OTHERS 1982 CLC 395, GHULAM NABI AND OTHERS V. FEDERAL LAND COMMISSION 1986 CLC 1054 and SAID NABI AND ANOTHER V. SHAD MUHAMMAD AND ANOTHER,
(SIC) MUHAMMAD SHAFI KHAN AND ANOTHER V. MUKHTIAR AHMAD AND OTHERS 1993 SCMR 650 in support of his contentions.
9. We have considered the arguments of the learned counsel for the parties and have perused the record with their assistance.
10. The transaction of sale effected by the petitioner No,1 through Mutation No,2633 was incorporated in the revenue record in the presence of Sardar Abdul Ghafoor who is the father of the minors and husband of the petitioner No,
1. In the entries of the mutation the receiving, of the consideration and the change of the delivery of possession is admitted before the revenue authorities. Although after the submission of declaration form by the petitioner No,1 the Federal Land Commission expressed some doubts about the authenticity of the Mutation No,2633 dated 2- 6-1971 reflecting the sale of 610 acres of the land by the petitioner No,1 in favour of her minor children for a sum of Rs,23,000 and the Federal Land Commission vide order dated 15-6-1972 declared the transaction to be invalid and not a genuine one but upon an appeal the Additional Chief Land Commissioner Punjab Lahore in his order dated 11-7-1973 made the following observation after perusing the available record and the additional material brought before him by and on behalf of the appellant:-- "Having thus established the relationship of mother and children between the vendor and the vendees it was argued on behalf of the appellant that since the land was transferred to the heirs within the meaning of Para 7 of MLR 115 it should be declared as a valid transaction. It was further contended that it is not necessary in this case to go into the other elements of sale to establish that it was a bona fide transaction as even gift is allowed to heirs under MLR-115. This plea of the Council on behalf of the appellant seems to be in accordance with the provision of MLR-115 under proviso (1) of Para 7(1)(b).
In view of the above it is held that this transaction was a valid transaction. The appeal is therefore allowed and the order of the Land Commissioner is set aside."
11. Although a scrutiny was conducted by the Federal Land Commission Inspection Team of this transaction in the year 176 but from the available record it is not established that on what additional material collected by the Federal Land Commission the transaction was found to be in genuine by the Federal Land Commission Inspection Team. It is an admitted fact that no inquiry was conducted by the Federal Land Commission Inspection Team nor by the Federal Land Commission to nullify the genuineness of the transaction of sale as incorporated in the Mutation No,2633 dated 2-6-1971. The Federal Land Commission Inspection Team and the Federal Land Commission in the impugned order dated 28-12-1976 did not mention any legally admissible and duly collected material by Federal Land Commission Inspection Team in support of the impugned order dated 28-12-1976. The Public Officers are under a legal obligation that if the rights of the citizens are to be interfered with, it be done on the basis of some legally admissible evidence duly collected. The rights of the citizens cannot be allowed to be jeopardized on the basis of assumptions, surmises and conjectures. The ownership of the petitioner No,1 of the total land is not denied. The entries made in the revenue record reflected a bona fide transaction. The petitioner No,1 could have given the subject land through a simple gift to her children and merely because a transaction -of sale was incorporated which was shown to have been effected for a consideration of Rs,23,000 admittedly received by the vendor/petitioner No,1 at home, the Federal Land Commission was not justified without recording any evidence to declare this sale transaction to be in-genuine.
12. The case-law cited by the learned counsel for the petitioners undoubtedly establishes that the Federal Land Commission has no jurisdiction to probe into the genuineness and bona fides of the transactions which are otherwise claimed and declared to be genuine by the declarant.
13. The contention of the learned counsel for the respondent that the use of the word "otherwise" after the term "gift" is to be interpreted on the principles of ejusdem generis to restrict the same to the concept of gift alone is not sustainable. In the celebrated judgment pronounced by this Court reported as SARDAR ABDUL GHAFOOR KHAN AND 3 OTHERS V. THE FEDERAL LAND COMMISSION, ISLAMABAD (PLD 1979 LAHORE 375) this argument raised by the Federal Land Commission in the said case as well was thoroughly examined and was repelled. The following paragraphs authored by Mr. Justice Shafi-ur-Rehman (as he then was) of the reported judgment from pages 377 to 378 are very relevant and are reproduced:-- "The word "otherwise" according to its dictionary meaning connotes "in any other way" or "any other ways". Its plain ordinary meaning has therefore the effect of enlarging the category of the transactions described by the preceding word or phrase. It is a word of the widest amplitude.
Notwithstanding this even in a two worded phrase like gift or otherwise, if the context irresistibly so indicates, a restricted meaning can be attributed and the principle of ejusdem generis applied (vide 70 L Q R 172.)
(5) The difficulty in applying the principle of ejusdem generis in this case in particular is the absence of genus, class or category and the near impossibility of determining it by mere inference. There is hardly a transaction which can be visualised as is in the nature of gift without being a gift and is not a sale, exchange etc.
(6) The context and the preceding statutory position irresistibly indicate to contrary. The proviso which requires interpretation is not a proviso to the first proviso but is a proviso to the main clause
(b) of paragraph 7. That clause deals with "the transfer of any land and the creation of any right or interest in or encumbrance on any land made in any manner whatsoever". The proviso that governs it is that nothing in the clause shall apply to any "transfer of land or creation of any right or interest in or encumbrance on any land by way of gift or otherwise made by a person in favour of his heirs". On this view the proviso does not travel beyond nor does it obliterate the clause of which it is a proviso. On the contrary it makes the clause inapplicable to a small category of alienations made by a person in favour of his heirs. Such an interpretation satisfies all the rules of interpretation governing a proviso,
(7) It is also difficult to visualise, apart from transfer of land, creation of any right or interest in or encumbrance on any land by a process of gift. The proviso by its first clause not only deals with the transfer of land but also with the creation of any right or interest in-or encumbrance on any land which of necessity has to be effected by transactions materially different from those of gift.
Therefore, the meaning of the word "otherwise" does not get restricted by-reference to the context.
On the contrary all the indications are that it has to be read as extending the modes by which such transfer could take place or right or interest could be created.
(8) Before its amendment, as originally enacted, para.7 while declaring certain transfers void in retrospect by clause (b), contained a proviso that "nothing in this clause shall apply to an alienation made by a person in favour of his heir". On the 8th August 1972, clause (b) of para.7 was retrospectively amended. The idea behind it appears to be not only to protect the past alienations covered by clause (b) of para.7 in favour of persons who were heirs but others whose claim could reasonably be considered to be equally worthy of consideration, though not falling in the category of heirs. The category so included was of widowed or unmarried sisters who had not received share of inheritance of ancestral land. Another category introduced was, of transaction by which any land was alienated in exchange for an area of land equivalent to the same area having substantially same produce index units as the land alienated. The purpose of this amendment which is now the subject matter of interpretation appears to be to mitigate the rigour of retrospective nullification of transactions. The protection that was earlier afforded to alterations in favour of heirs was not in any manner reduced or curtailed. Instead the protection on satisfaction of certain conditions was allowed to persons who were not heirs but closely related and to rank outsiders in the matter of certain exchanges. Therefore, this .Object of the law would also indicate that a restrictive meaning could not be given to the word "otherwise".
' This view is being consistently followed in the latter case-law as noted above. The learned counsel for the respondent could not substantiate his arguments by citing any law to the contrary. The concept of delivery of possession has also been taken care of in the reported judgment IBRAHIM V.
MST. WAZIR BEGUM (PLD 1967 LAHORE 1087). A latest judgment pronounced by the honourable Supreme Court of Pakistan reported as MST. TAYYABA KHANAM AND OTHERS V. CHAIRMAN FEDERAL LAND COMMISSION AND OTHERS (1994 SCMR 1110) has specifically dealt with this aspect of delivery of possession in the natter of a gift made in favour of minors in an MLR-115 case and held that no specific transfer of possession of the property gifted to the minors by the donor was necessary.
14. The subsequent development whereby the PIUs of the petitioner No,1 were recalculated and were found below the ceiling of 12000 PIUs ' which fact has been highlighted from the record by the learned counsel for the respondent himself and is also projected through an amended writ petition filed by the petitioner No,1 as well leaves no scope for the Land Commission to exercise any power of resumption in respect of the land in question.
15. It is also observed that at the time of the passing of the impugned' order by the Federal Land Commission dated 28-12-1976 the Constitution of Islamic Republic of Pakistan 1973 has been enforced whereby in Article 24 it was, ensured that no person shall be deprived of his property save in accordance with law which provides for compensation thereof, therefore, the impugned order is violative of this concept of the Constitution of Islamic Republic of Pakistan as well.
16. For all the reasons stated above, we are of the considered view that a genuine transaction of sale by the petitioner No,1 in favour of the petitioners Nos.2 to 6 who were her minor children at that time Was effected of 610 acres of land as incorporated in the revenue record on 2-6-1971 and the bona fides of which transaction was accepted by the Additional Chief Land Commissioner Punjab in the order dated 11-7-1973. The impugned order dated 28-12-1976 passed by the Federal Land Commission which is not based upon any legally admissible evidence duly collected by the Federal Land Commission Inspection Team was therefore illegally passed and is declared to be without lawful authority and of no legal effect. The instant writ petition accordingly is allowed with the above mentioned observation with no orders as to costs.