1. ANWARUL HAQ. C. J.-This petition by the Federal Land Commis--sion seeks leave to appeal against the judgment of a Division Bench of the Peshawar High Court dated the 15th of June, 1977 by which the Constitution petition filed by the respondent Mst. Gul Bibi was accepted and an order made by the Federal Land Commission on the 25th October, 1976, in suo motu revision was declared to be without lawful authority and of no legal effect.
2. The relevant facts are that an area of agricultural land measuring 2289 Kanals and 8 Marlas in the Bannu District was purchased in 1965 by Memraz Khan, a brother of the respondent Mst. Gul Bibi, and later gifted to her by three mutations attested in December, 1970 and March, 1971, respectively.
3. On the promulgation of Martial Law Regulation No. 115 on the 11th March, 1972, the respondent's husband, Mr. Sarwar Jan, a retired Chief Engineer, was required to submit the return of his holding of agricultural land, and a question arose whether, in terms of paragraph 10 of the aforesaid Regulation, the land, in question, was to be treated as his property for the reason that it had come to his wife within two years of his retirement from Government service. The Deputy Land Commissioner, by his order dated the 16th of June, 1972, came to the conclusion that although there was no evidence to show that the property was acquired by Memraz Khan as a Benamidar for the respondent's husband Sarwar Jan, yet such kind of gifts were very rare and, therefore, he would treat this as the acquired property of the declarants under paragraph 10 of the Regulation.
4. Aggrieved by this order of the Deputy Land Commissioner Mr. Sarwar Jan Khan filed an appeal which was accepted by the Land Commissioner, D.
1. Khan Division by his order dated 3rd July, 1972.
5. The officer observed that he did not agree with the Deputy Land Commissioner that a gift from a brother to a sister was a rare type of gift, as there were quite a few cases which had taken place in the country. He considered that there was no reason to doubt the genuineness of the gift by Memraz Khan in favour of his sister Mst. Gul Bibi and, therefore, the land, in dispute, could not be regarded as being in the ownership of the declarant Mr. Sarwar Jan Khan.
6. This order of the learned Land Commissioner was taken up for suo motu revision by the Federal Land Commission, and set aside on the 25th October, 1976. On the ground that regardless of the possibility of this land having been acquired by the declarants in the name of his brother-in-law in 1965, as would seem to be suggested by the fact that the land was returned to the declarant's wife, the provision of paragraph 10 gave no choice except to regard this as declarant's holding. The learned Officer on Special Duty of the Federal Land Commission further went on to state "sub- paragraphs (i) and (ii) of paragraph 10 read together provided that any land, by any means whatever, acquired in the name of a heir would be deemed to be owned by the Government servant". On this view of the matter he directed that the area in dispute would be deemed as having been acquired by the Government servant concerned within the meaning of paragraph 10 of the Regulation, and would be resumed as being in excess of his entitlement under the said paragraph.
7. The respondent Mst. Gul Bibi challenged this order of the Federal Land Commission by means of a writ petition which, as already stated, has been accepted by a Division Bench of the High Court. The learned Judges have observed that from a reading of the order made by the Deputy Land Commissioner, it becomes clear that he was not acting on any evidence whatever, but suspected the genuineness of the transaction for the reason that such gifts were rarely made. 'I hey have observed that such a view is not tenable, as it would be a case of no evidence. They have stated that the revisional order made by the Federal Land Commission was also open to a similar objection, as it had taken for granted that the land had been acquired in the first place by Mr. Sarwar Jan Khan in the name of his brother-in--law Memraz Khan in 1965, and the acquisition was hit by clause (ii) of paragraph 10 on the assumption that Memraz Khan was an heir of Mr. Sarwar Jan Khan. They have expressed the view that there was not an iota of evidence to show that Memraz Khan had acted as a Benamidar for Mr. Sarwar Jan Khan and, therefore, this is not a case of the transfer of land by a Government servant in favour of his heir. Accordingly they have held that the matter was not hit by paragraph 10 of Martial Law Regulation 115, with the result that the order made by the Federal Land Commission could not be upheld.
(i) acting in the exercise of its extraordinary jurisdiction under Article 199 of the Constitution, the High Court is not empowered to set aside the findings of fact recorded by the statutory authorities concerned, especially when the conclusion reached by the Deputy Land Commis--sioner and upheld by the Federal Land Commission, was fully supported by the attendant circumstances of the transaction of gift ;
(ii) the matter being one of public policy arising under a special statute intended to bring about land reform, the High Court should have placed such an interpretation on paragraph 10 as would enhance the object of legislation and suppress the mischief arising from illegal and secret acquisition of property by Government servants in the names of their relations and heirs ; and
(iii) the Benami nature of the transaction stood fully proved in terms of section 3 of the Evidence Act, as there was no explanation why Memraz Khan had transferred his entire holding of land to his sister in 1969 after her husband had retired from Government service.
8. After hearing Mr. Najafi at some length and examining the relevant provision of law, we are of the view that no justification has been made out for our interference in the matter.
9. It is true, as laid down in PLD 1974 SC 139, and relied upon bye Mr. Najafi the High Court has not to sit as a Court of appeal on the findings, recorded by the statutory tribunals, and those findings are not to b4 interfered with simply because they are wrong in the opinion of the High Court, but the fact remains that the findings based on no evidence, or arrived at as a result of misreading of evidence are open to correction by theHigh Court in the exercise of its powers of judicial review.
10. Now, in the, instant case, the High Court has expressed the view that the Deputy Land Commissioner and the Federal Land Commission had no evidence to come to the conclusion that the land was initially ac4uired by Memraz Khan as a Benamidar for his brother-in-law Mr. Sarwar Jan Khan. If this be the correct factual position then the High Court was clearly right in holding the order of the Federal Land Commission to be without lawful authority. It would, therefore, be necessary to examine whether there was indeed any evidence in support of the finding recorded by the Federal Land Commission.
11. Mr. Najafi is right in submitting that in PLD 1956 FC 157 and P L D1961 SC 252 this Court has expressed the view that in cases arising under special legislati6n. Like the one dealing with evacuee property, decisions B have to depend on grounds of policy and not only on considerations that weigh with Courts of law and the jurisdiction of the superior Courts is not to be exercised in a manner which will defeat the object . Of the special legislation ; but these observations are not directly relevant in the present context, for, Martial Law Regulation No. 115 does not merely deal with questions of policy relating to land reforms, but it also contains confiscatory provisions for the resumption of excess holding over and above the prescribed number of produce index units. In this respect the Regulation stands on an entirely different footing from legislation dealing with evacuee property, which was intended to compensate claimants and others out of the compensation pool formed by the State acquisition of evacuee property. The allotments and transfers made by the Government were in the nature of grants, and it could be said that the claimants and other displaced persons did not have an absolute legal right to obtain evacuee property.
12. The case before us is entirely of the reverse kind as the State is seeking to take away property belonging to private owners. It is, accordingly, necessary that the relevant provisions should be strictly construed, as otherwise they might have the effect of taking away private property without compensation even though the law did not strictly justify the same. In the present case the property, in dispute, ostensibly belongs to the wife of a Government servant, and it is necessary that all the requirements of law should be strictly complied with and satisfied before she is deprived of this property on the ground that it was, in fact acquired by her husband in a benamed transaction.
13. Coming now to the provisions contained in paragraph 10 of the Regula--petition we find that the relevant provision is sub-paragraph (ii) thereof which lays down "Where any person as is referred to in sub-paragraph (i) has, within the period specified therein, transferred in favour of any of his heirs or has acquired in the name of any of them any land, and such land continues to be owned or possessed by his heirs, he shall for the purpose of that sub- paragraph be deemed to be the owner of such land."
14. It will be seen that the essential requirement is that there should be a nexus between the Government servant concerned and the property in dispute. Either he should have transferred the property in favour of any of his heirs or be should have acquired the same in the name of any of them.
15. Such being the case, it was necessary for the Federal Land Commission to record the finding as to whether the property had, indeed, been acquired by Memraz Khan in 1965 as a Benamidar for his brother-in-law Mr. Sarwar Jan Khan who was then serving in the Irrigation Department of the Provincial Government. The learned Deputy Land Commissioner considered that there was no evidence to show that this was so. Ile, however, thought that such gifts by brothers in favour of their sisters were rare indeed and, therefore, it should be presumed that Memraz Khan had purchased the property on behalf of Mr. Sarwar Jan Khan and transferred the same to his sister after her husband had retired from Government service. This presumption was not accepted by the learned Land Commis--sioner acting in appeal. The Federal Land Commission has given no reasons whatsoever in rebuttal of the findings recorded by the learned Land Commissioner in the appellate order and has, in fact proceeded on completely erroneous interpretation of the law. Mr. Najafi's contention that the attendant circumstances prove conclusively within the meaning of section 3 of the Evidence Act that the land had been acquired by Memraz Khan as a Benamidar for the Government sekvant concerned cannot be accepted. Before the Deputy Land Commissioner statements were made by Memraz Khan as well as Mr. Sarwar Jan Khan that Memraz Khan had ample means of his own to purchase the land in 1965, and he transferred the same to his sister in 1970, for reasons of natural love and affection as his sister had brought him up and looked after him otherwise. In the absence of any other evidence, Deputy Land Commissioner was merely acting on suspicion in holding that the property must be regarded as being a Benami purchase by Mr. Sarwar Jan Khan. The learned Land Commissioner, acting in appeal, was within his rights in reversing this finding. The view taken by him was a plausible view, tenable in the circumstances of the case. The Federal Land Commission could have interfered with it in suo motu revision only on reasonable grounds, but the Commission did not record any findings on this aspect, but simply proceeded to regard the property as being that of the Government servant on the ground that sub-paragraph (ii) of paragraph 10 covered all acquisition of property by heirs of a Government servant in whatever manner. We have already seen that this was a completely erroneous view of the law.
16. It follows, therefore, that the Federal Land Commission was in error in setting aside the appellate order of the Land Commissioner. The order, made by the High Court in writ jurisdiction has the effect of restoring the appellate order of the Land Commissioner and not substituting its own opinion on facts.
17. We consider therefore, that this is not a case in which '%4e can hold that the High Court has not properly exercised the jurisdiction vested in it under Article 199 of the Constitution. It has rightly declared the order of the Federal Land Commission to be. Without lawful authority and of no legal effect.
18. As a result the present petition fails and is hereby dismissed.