' MUHAMMAD MUNIR KHAN, J.-These three Writ Petitions Nos. 823/78 by Muhammad Iqbal, 850/78 by Allah Ditta, Haquawaz, Rabnawaz and Muhammad Bakhsh and 3762/77 by Mst. Hayat Btbi arise from an order of Mr. Maqbool A. Sheikh, Officer-on-Special Duty, Federal Land Commission, whereby he on 21st October, 1976 declared mutation No, 241 dated 6th January, 1971 of sale pertaining to village Sardarpur, mutation No, 34 of exchange, Chak No, 4/8-R, mutation No, 38 of exchange, Chak No, 5/8-R, mutation No, 71 of exchange, Chak No, 17/ 8-BR and mutation No, 26 of Chak No, 6/8-R, all dated 11th January, 1971, void, to be without lawful authority and of no legal effect. Since the three writ petitions arise from the same order, we propose to dispose them of through single judgment.
2. The facts leading up to this petition in brief are that Muhammad Iqbal petitioner (W. P. No, 823/78) is a declarant under Martial Law Regulation No,
115. He filed details of all the transactions of land made by him within the stipulated period which on 10th April, 1974, after scrutiny, were found valid by Provincial Land Commission. On 27th February, 1975, head of the Inspection Team wrote a report to the effect that the above-stated mutations of exchange between the petitioner and his wife Mst. Hakim Bibi and his sister Mst. Hayat Bibi and mutation of sale i. e. Mutation No, 241 in favour of Muhammad Bakhsh were invalid. Whereon ultimately, Mr. Maqbool A. Sheikh, respondent vide his impugned order dated 21st October, 1976 declared these transactions as void. Hence this writ petition.
3. The learned counsel in his lengthy address has raised the following worth-notice points :
(i) That under paragraph No, 29 of Regulation No, 115 (Land Reforms Regulation, 1972), Mr. Maqbool A. Sheikh, O. S. D., was not legally of competent to go into the correctness and legality of the disputed transactions and as such the impugned order has been passed without lawful authority.
(ii) That no doubt, respondent could initiate proceedings suo motu and since in the case in hand, the proceedings have been initiated on the report of the inspection team, therefore, the impugned order being violative of paragraph No, 29 of M. L. R. 115, is illegal.
(iii) That Muhammad Bakhsh and others, the petitioners (W. P. No, 850/78) and Mst. Hayat Bibi petitioner (W. P. No, 3762/77) were not given any notice and have been condemned unheard.
(iv) That mutations of exchange being in favour of wife and Mst. Hayat Bibi, who, too, being a widow sister was an heir of the declarant, the mutations in their favour were quite valid and immune from proceedings.
(V) That the respondent has not determined the P. I. Units before passing the impugned order.
' As against this, the representative of respondent has vehemently defended the impugned judgment. He submitted that respondent No, 1 had legal authority to pass the impugned order and that the mutations have been declared void for the reasons recognized by law.
4. After hearing the learned counsel, we have not been able to persuade ourselves to agree with the learned counsel for the petitioner with regard to the transactions of exchange in favour of Mst.
Hayat Bibi (sister) and the transaction of sale (mutation No, 241) in favour of Muhammad Bakhsh, on the grounds that in view of the notification dated 10th July, 1976, the respondent was competent to satisfy himself as to the bona fide of the disputed transactions and that since Mst. Hayat Bibi has not been proved a "widow" sister and that in the peculiar circumstances of the case, the transaction of sale, mutation No, 241 appears to be fake. It would be convenient to quote notification and relevant provisions of law : "The Gazette of Pakistan Extraordinary Published by Authority Islamabad, Saturday, July 10, 1976 PART HI Other Notifications, Orders, etc. ' Government of Punjab Cabinet Secretary (Cabinet Division)
NOTIFICATION S Rawalpindi, the 10th July, 1976 No, 7(18) 72-Cord-I.-In exercise of the powers conferred by paragraph 29 of the Land Reforms Regulation, 1972, the Federal Government is pleased to authorise the following persons for the purposes of the said paragraph 29 :-
(1) Mr. Muhammad Irshad Khan, O.S.D., Federal Land Commission.
(2) Mr. Maqbool A. Sheikh, O.S.D., Federal Land Commission.
(3) Mr. Mazhar Ali Kazi, O.S.D., Federal Land Commission.
VAQAR AHMAD, Cabinet Secretary."
' Paragragh No, 7.-Certain Transfers Void.-(1) Save as otherwise provided in this Regulation.
(a) o .................................... ..........
(b) "save in cases where the Commission is satisfied that it was a bona fide transaction, the transfer of any land and the creation of any right or interest in or encumbrance on any land, made in any manner whatsoever, by any person held on first March, 1967, an area equivalent to more than fifteen thousand produce index units (calculated on the basis of classification of soil as entered in the revenue records for Kharif 1966 and Rabi 1966-67), shall be and shall be deemed always to have been void, and the land so transferred or the land on which the right, interest or encumbrance was so created shall be, and shall be deemed always to have been, owned or possessed, as the case may be, by the person by whom it was owned or possessed immediately before that date : ' Provided that nothing in this clause shall apply to an alienation made by a person in favour of his heir."
From the notification reproduced above it is very much clear that Mr. Maqbool A. Sheikh, Officer- on-Special Duty, respondent had lawful authority under paragraph No, 29 of M.L.R. 115 to pass the impugned order and as such point No, (i) raised by the learned counsel appears to be misconceived. As far the question raised at No, (ii) since the report of Inspection Team on which record was called for cannot be treated as an application by a person aggrieved, therefore, action taken by respondent would be a suo motu exercise of power as laid down in case `Farooq Ahmad Khan Laghari v. Muhammad Rashid.
5. Coming to point No, (iii), we find that it is now well-settled that the proceedings under M.L.R. 115 are taken for the purpose of ascertaining holding of declarant, so as to resume the excess land, if any, and as such the vendee or transferee from declarant and particularly cases where there is no dispute between the vendors and vendees as to the existence of the transaction, cannot claim opportunity of being heard as a matter of right. This view finds support from case `Sardar Shafique Haider Khan Laghari v. Member (Abdul Qayyum) Federal Lan Commission. As far point No, (iv), we find that since Mst. Hakim Bibi being wife of the deceased was an heir, therefore, the disputed mutations relating to the transactions of exchange by the declarant in her favour could not be looked into by the respondent on any ground and his action with regards to those transactions is obviously without jurisdiction. So far as the mutations of exchange in favour of Mst. Hayat Bibi, the sister, we find that no doubt, a widow sister would be an heir under paragraph 7-1 (b) of Regulation No, 115 but in the case in hand, there is nothing on the record to show that Mst. Hayat Bibi ,was in fact a widow. So much so, that it has not been stated so in her ' writ petition. As far the bona fide of the transactions of exchange in favour of Mst. Hayat Bibi, the sister, and transaction of sale in favour of Muhammad Bakhsh, we find that the respondent who had exclusive jurisdiction has applied his mind to the factual and legal aspects of the case and had given cogent reasons for the conclusion arrived at by him. The reasons given by him are recognized by explanation III t paragraph 7 of M.L.R.
115. As far mutation No, 241 of sale in favour of Muhammad Bakhsh, we are fully convinced that it was a fake transaction. Strangely enough, the petitioner sold his land for Rs, 40,00 to Muhammad Bakhsh and on the same day got it back on mortgage for Rs, 60,000. Be that as it may, the fact remains that whether the disputed transactions of exchange and sale were bona fide or not, is a question of fact and respondent No, 1 was quite competent to investigate into and hold the transactions other than the transaction in favour of wife, to be void or not. For all these reasons, we do not find any substance in point No, (iv) raised by the learned counsel. As far the last point raised by the learned counsel that too, does not hold any water inasmuch as the determination of P. I.
Units having already been done by D.L.C. On 10th April, 1974, it was not necessary for the respondents to determine it again, particularly, when the determination by the D.L.C. Was not challenged before him.
6. The upshot of the discussion is that the impugned order of the respondent to the extent of transactions of exchange in favour of Mst. Hakim Bibi, the wife is declared, to be illegal and without lawful authority but to the extent of the transactions of exchange in favour of Mst. Hayat Bibi, the sister and transaction of sale i,e, mutation No, 241, is well within authority.
7. We are fully conscious that .Mst. Hakim Bibi, the wife has no filed appeal against the impugned order but since the impugned orde as a whole has been challenged by Muhammad Iqbal in W.P.
No, 823/78, therefore, we have considered the legality of the impugned order affecting the transactions of exchange in favour of the wife and having found the order illegal to that extent have declared the same to without lawful authority. This writ petition is disposed of accordingly. PLD 1981 Lab. 159 PLD 1981 Lah. 3561 2 1 2