Ch. Muhammad Iqbal, J. Through this single judgment, we intend to decide the titled writ petition (No.1655/1997) alongwith W rit Petition No.1 114/1997 as both these petitions have been filed against the same order .
2. Through these Constitutional petitions under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, the petitioners have challenged the validity of order dated 22.08.1996, passed by the respondent No.1/Chairman, Federal Land Commission, Islamabad, who accepted the revision petition under Para 29 of the Land Reforms Regulation, 1972 (MLR No.115 of 1972) filed by respondent No.3/Mst. Yasmeen and restored mutation No.204 in her favour .
3. Brief facts of the case are that that one Ansar Pervez, real brother of Mst. Yasmeen/ respondent No.3, was declarant under Martial Law Regulation No.115 of 1972 of his owned land in Moza Durana Langana and Moza Taraf Mubarak Doim Tehsil & District Multan which was in excess of maximum limits. The said declarant / Ansar Pervez, through mutation No.204 (entered on 06.01.1972) sanctioned on 24.01.1972, allegedly gifted out the land in question to his sister/respondent No.3. He filed his declaration form RL-I and Form RL-II in this regard. The Land Commissioner probed the matter and declared the said gift transaction as illegal vide order dated 16.10.1974.
Respondent No.3 challenged the said order in an appeal before the Additional Land Commissioner , Punjab who dismissed said appeal on 06.03.1975. In compliance of the above order the Revenue Authority reviewed the mutation No.204 dated 24.01.1972 vide order dated 06.05.1976 and land was mutated in favour of the state. The said order of review of mutation was challenged by respondent No.3 in appeal which was dismissed by the concerned Revenue Authority and finally ROR of the respondent No.3 was also dismissed by the Member Board of Revenue on 24.03.1996.
Against the original orders of Federal Land Commissioner dated 16.10.1974 and Addl. Land Commissioner dated 06.03.1975 respondent No.3 filed Revision Petition on 27.06.1996 under Para 29 of the Land Reforms Regulation, 1972 before the Chairman, Federal Land Commissioner , Islamabad who accepted the same vide impugned order dated 22.08.1996 and restored mutation No.204 in her favour . Against the above order Govt. of Punjab as well as the legal heirs of declarant filed these writ petitions.
4. We have heard the arguments of learn ed counsels for the parties and have gone through the record with their able assistance.
5. Before dealing with respective contention of the parties, it is appropriate to understand the scheme of law. In order to improve the economic well-b eing of peasantry and making agricult ure a profitable vocation, the Government of Pakistan promulgated the Land Reforms Regulation 1972 (MLR 115) on 11.03.1972 (to be referred hereafter as "Regulation") whereby maximum ceiling of the own land was fixed.
Under Para 7(1)(a) of the Regulation maintains that any transfer of land creating any right or interest or encumbrance in any manner whatsoever after 20.12.1971 by any person holding immediately before the above terminus date is deemed to be void transaction. For ready reference, aforesaid para is reproduced as under: Certain transfers void.- (1) Save as otherwise provided in this Regulation-
(a) The transfer of any land, the creatio n of any right or interest in or encumbrance on any land, made in any manner whatsoever in respect of any area, on or after the 20th day of Decembe r, 1971, by any person holding immediately before that date an area of more than one hundred and fifty acres of irrigated land or three hundred acres of unirrigated land or an area equivalent to twelve thousand produce index units (calculated on the basis of classification of soil as entered in the revenue records for Kharif 1969 and Rabi 1969-70), whichever shall be greater , shall be and shall be deemed always to have been void, and the land so transferred or encumbered shall be deemed to have been owned or possessed, as the case may be, by the person by whom it was owned or possessed as the case may be, by the person by whom it was owned or possessed immediately before that date: Provided that in the case of a person to whom, the provisions of sub-paragraph (2) of paragraph 8 apply , no such transfer or creation of any right or interest or encumbrance shall be void unless he was holding on the said date an area more than fourteen thousand produce index units.
6. A person if aggrieved of any order passed by the authority established under the Regulation has a remedy of Revision before the Federal Government to be filed within a period of 60 days. For ready reference, Para 29 of the Regulations ibid is reproduced as under:
29. Revisional powers of the Federal Government.- The Federal Government, or any person authorized by it in that behalf, may at any time, of its, or his own motion or otherwise, call for the record of any case or proceedings under this Regulation [or under the repealed Regulation] which is pending or in which a Commission or any other authority appointed under this Regulation, [or under the repealed Regulation] other than the Federal Land Commission constituted under paragraph 4-A, has passed an order , for the purpose of satisfying itself or himself about the correctness, legality or propriety of such an order , and may pass such order in relation thereto as the Federal Government or , as the case may be, such person thinks fit: Provided that the Federal Government may, from time to time, specify the case or class of cases in which it desires to pass final orders: Provided further that no order shall be passed under this paragraph revising or modifying an order affecting any person unless such person has been af forded an opportunity of being heard: Provided further that the record of any case or proceedings in which a Commission or other authority has passed an order shall not be called for under this paragraph by the Federal Government or the person authorized by it-
(a) of its or his own motion, after the [30th day of November , 1976], or
(b) on the application of any aggrieved person made after the expiration of sixty days from date of such order or from the enactment of the Land Reforms (Amendment) Act, 1973, whichever is later, excluding the time requisite for obtaining a copy of such order ."
7. The aforesaid provision makes dysfun ctional the remedy of Revision after expiry of 60 days of passing of an order by the Federal Government or the person authorized by it. This case revolves around the provision of Para 29 of the Regulation ibid, as the main emphasis of learned counsel for the petitioners is that the orders of Land Commissioner and Addl. Land Commissioners passed on 16.10.1974, 06.03.1975 respectively were challenged by the respondent in Revision Petition under Section 29 of the Ordinance ibid on 27.06.1996 after inordinate delay of more than two decades and under the aforesaid provision, the Chairman, Fede ral Land Commission was not competent to entertain, adjudicate or reopen the case after 30.11.1976. Reliance in this regard is placed on Imad Ali Vs. Federal Land Commission, Rawalpindi and 2 others (PLD 1987 Karachi 8), relevant portion whereof is reproduced as under: "2..... Under the provisions of the Land Reforms Regulation, 1972 the case could not be re-opened after 30-11- 1976 and in the Land Reforms Act of 1977 also no provision could be pointed out by the learned counsel for the Federal Land Commission, under which an order passed by a Land Reforms Authority under Paragraph 7(1)(b) of Land Reforms Regulation, 1972 could be re-opened after 30-1 1-1976."
In a case cited as Muhammad Ramzan Vs. Federal Land Commission and others (2004 MLD 805), a learned Division Bench of this Court held that the proviso 3 to Para 29 of the Land Reforms Regulation, 1972 placed a complete embargo on Suo Motu exercise of revisional powers by the Federal Government or by a person authorized by it in this behalf after 30-11-1976. The relevant portion of the judgment (supra) is reproduced as under: "7. Bare reading of the above said provisions of law reveals that the 3rd proviso to above-quoted paragraph 29 placed a complete embargo on suo motu exercise of revisional powers by the Federal Government or by a person authorized by it in this behalf after 30-11-1976. This position of law was affirmed by the Hon'ble Supreme Court of Pakistan in the case of "The Chairman, Federal Land Commission, Islamabad and another v. Akhtar Abbas"
(PLD 1989 SC 550) and in the case of Government of N.W.F.P through Secretary , Forests, Fisheries and Wildlife, Peshawar and others v . Federation of Pakistan and others ( 1998 SCMR 36 ) wherein it was held that:- "A careful reading of the above provision would show that the revisional powers contained in the main paragraph 29 of MLR 115 are not unfettered but are controlled by the three provisos appended to it. Under the first proviso, the Federal Government may specify the cases or class of cases in respect whereof the power of revisional may be exercised. Under the second proviso the Federal Government or its delegate cannot modify or revise an order which affects the right of any party unles s such party has been given an opportu nity of hearing in the case. The third proviso places complete embargo on the exercise of the suo motu revisional power by the Federal Government or by a person authorized by it in this behalf after 30th day of November , 1976."
(emphasis supplied)
Another reliance is placed on judgment dated 09.10.2001, passed by a learned Division Bench of this Court in Writ Petition No.2693/1990 wherein following observations were made: "8. W e would be reproducing here the 3rd proviso to the said para-29:- Provided further that the record of any case or proceedings in which a Commission or other authority has passed an order shall not be called for under this paragraph by the Federal Government or the person authorized by it:- a) of its or his own motion, after the [30th day of September , 1975], or
(b) on the application of any aggrieved person made after the expiration of sixty days from date of such order or from the enactment of the Land Reforms (Amendment) Act, 1973, whichever is later, excluding the time requisite for obtaining a copy of such order ."
It is the said sub clause-b of the said para-29 which has been invoked by respond ent No.1 while dealing with the application filed by the tenants. We find that respondent No.1 has conveniently ignored the said clause (a) of the said 3rd proviso. To our mind, the said 3rd proviso places bar on the respondent No.1 from calling for record of any case or proceedings on his own motion after 30.11.76. We, therefore, do hold that respondent No.1 had no lawful authority to pass impugned order in exercise of his suo moto powers in the year 1990. Needless to state that this is the only provision of law which authorised the Federal Government or a person authorised by the said Government to call for records in a case decided under the said MLR-64.
(emphasis supplied)
8. Admittedly , the final order in appeal of the respondent No.3 was passed by the Additional Chief Land Commissioner , Punjab on 06.03.1975 whereas the Revision Petition under Para 29 of the Land Reforms Regulations, 1972 was filed on 27.06.199 6 i.e. after lapse of 21 years and 03 months whereas Under Para 29 of the Regulations ibid, the prescribed period of limitation for filing the Revision against an adverse order is 60 days, as such, the revision petition of respondent No.3 before the Chairman FLC was badly time barred and could not be entertained at such belated stage.
9. Further , the Land Reforms Regulation, 1972 (MLR No.115 of 1972) is a specia l law, Para 29 whereof provides 60 days period of the limitation for calling in question the validity of an order by the lower Land Commission fora with the only exception of exclusion of time consumed in obtaining certified copies of the said order otherwise the limitation is not condonable by the Chairman Federal Land Commission.
10. Furthermore, after Review of mutation No.204 the land was mutated in favour of the state and without hearing the state an effective order could not have been passed. Even Para 29 of the Regulation ibid prohibits the authority to decide the revision from passing an order, revising or modifying the order of the lower fora of Land Commission in the absence of the person to be effected from the said order but the respondent No.1, Chairman Federal Land Commission, Islamabad without issuing any notice to the petitioner (Province of the Punjab) entertained and decided the revision petition of the respondent No.3, in violation of mandatory privisons of law, as such, the impugned order is nullity in its entirety and is passed in violation of maxim of audi alteram partem . As the impugned order suffers from patent illegality , perversity and wanton misuse of power which vices are floating on the face of record as such the impugned order is not sustainable in the eyes of law .
11. Resultantly , these writ petitions are allowed and the impugned order dated 28.02.1996, passed by the respondent No.1, Chairman, Federal Land Commission, Islamabad is hereby set aside being passed without jurisdiction and Revision Petition of the respondent No.3 shall be deemed to have been dismissed being barred by limitation.