MIAN BURHANUDDIN KHAN, J. -In this appeal, leave was granted vide order of this Court, dated the 7th April, 1981 upon a number of grounds e. g. Whether the learned Chairman, federal Land Commission, acting singly, could pass an order under paragraph 29 of M. L. R. 115, 1972 and what is the effect of validation of the proceedings so undertaken by him ; that the appellants had no notice of the exact grievance against them nor they had been afforded an opportunity to prove their case; that the revisional order, passed by the learned Chairman, Federal Land Commission, entirely on the basis of a factual inquiry which had already been undertaken more than once by the Land Commission authorities and that there was abundant material which, if the appellants had been allowed to produce, could have been placed before the learned Chairman for the purpose of demonstrating that the conclusions drawn were not in accordance with facts and law ; that the appellants had been sold the land in dispute not only on the basis of tenancy but on the basis of selection from amongst the other persons eligible to purchase the land in question cultivation being one of the qualifications and not the only one. In such a situation resort to revisional power for upsetting a finding of fact was not justified.
2. Facts as given in the appeal are that the appellants claim to be the old permanent residents of Chak Soon Miani, Tehsil Rajanpur, District Dera Ghazi Khan where they had been cultivating land under the land-lordship of Mazari family; that under the operation of resumption of the excessive area of the big landlords under Martial Law Regulation No, 64 of 1959 proprietary cultivated and proprietary untenanted and uncultivated land in excess to the permissible entitlement of retention, vast area of the said landlords of District Dera Ghazi Khan situated in Tehsil Rajanpur, was resumed by the Government. After resumption of the land the West Pakistan Land Commission formulated Sale Scheme under paragraph 19 of M. L. R. 64 for sale of the resumed land to the tenants and other persons. It was also prescribed under the same Scheme that the resumed proprietary cultivated land, to a prescribed extent, shall in the first priority, be offered for sale to the tenant of such land who was in actual cultivating possession of that land in Kharif 1958 and Rabi 1959. In respect of sale of resumed proprietary untenanted and uncultivated land the Land Commission, under M. L. R. 64, decided that it would be offered for sale to the residents of the village in which it is situated, in order of first priority to the tenants of the resumed areas of the village to enable them to upgrade their holdings to the subsistence level as laid down in paragraph 65 of Land Reforms in West Pakistan Volume I and paragraph 65 of the Land Reforms in West Pakistan Volume III.
3. Appellant Ghulam Mustafa claims that he and Gamun were joint tenants in joint cultivation of the resumed proprietary cultivated land comprising of Khasra numbers as mentioned in paragraph 3 of the petition, totalling 40 kanals and 17 marlas and Muhammad Aslam petitioner appellant No, 2 his son, and Palia son of Sachoo were joint tenants in joint cultivation of the resumed proprietary cultivated land comprising in other Khasra numbers measuring about 29 kanals and 16 marlas situate in Chak Soon Miani.
4. The case of the appellants is that they were entitled to get the same land under the Sale Scheme but somehow or the other their names were omitted in the Register L. C. IX, prescribed by the Chief Land Commissioner, and names of Gamun and Palia, father of respondents Nos. 7 and 8 were shown as the tenants of the land in dispute, and, therefore, the appellants made two separate applications on 27-2-1960 to the Land Reform authority asserting that they were in actual ano joint possession of the land in question alongwith Gamun and Palia and, therfore, their names should also be incorporated in the Register L. C. IX. It is stated that after making a thorough inquiry at the spot by recording statements of the joint tenants namely Gamun and Palia ; after making spot inspection and seeing reports of the Patwari, dated 27-2-1960 and Girdawar, dated 13- 3-1960 respectively, the Sub-Assistant Land Commissioner ordered to enter the names of the appellants in Register L. C. IX under the instructions contained in paragraph 157 of Land Reforms in West Pakistan Volume I, vide his orders, dated 4-4-1960 and 27-4-1960. In their statements before the Sub-Assistant Land Commissioner Gamun and Palia admitted that the appellants were in actual joint cultivation as joint tenants of the land shown against their names in Register L C IX and that they had no objection in respect of the incorporation of their names in the said Register. After the correct entries were made, the appellants purchased the land under the Scheme. In addition to the above-said land, the appellants claimed to have also purchased other resumed proprietary uncultivated Banjar Qadeem and untenanted land under the upgrading Scheme.
5. That after payment of the entire price of the land by the appellants, mutation of sales bearing Nos. 73 and 74 of Chak Soon Miani were finally attested in their favour on 4-2-1974. Thereafter full proprietary rights of the purchased land, devolved permanently on the appellants. Both the appellants developed and improved the condition of the land by reclamation and installing a tube-well and made it cultivable by spending a heavy sum of Rs, 2 lacs within a period of 16 years of their ownership ; that Takker and his brother Musa were also residents of village Ghulam Ahmadabad, Tehsil Sadiqabad, District Rahim Yar Khan, got land under the Land Reforms, 1959.
6. Omaid Ali and Muhammad Aslam, alongwith others, made a miscellaneous application on 2-9-1951 before the Deputy Land Commissioner, Dera Ghazi Khan against the appellants on the ground that the land allotted to them was in their cultivating possession and as such they were entitled to the transfer of the same instead of the appellants. This application was marked to the Assistant Land Commissioner, Rajanpur/ Tehsildar, Land Reforms. The Naib-Tehsildar, Land Reforms, vide his report, dated 20-9-1961, submitted that the Khasra numbers claimed by the respondents were different from the Khasra numbers allotted to the appellants Ghulam Mustafa and Muhammad Aslam ; that the record of Patwari did not mention the names of respondents Nos. 1 and 8 and two others namely Musa and Laidoo as tenants of the land in dispute during Kharif 1958 and Rabi 1958-59. The Tehsildar also explained the correct position of the incorporation of the names of the present appellants in Register L. C. IX and their correct entitlement. The said application was dismissed on 18-11-1961 ; second application was dismissed on 14-12-1961 while the third was dismissed by the learned Deputy Land Commissioner, Dera Ghazi Khan on 17-8-1983. A revision filed before the learned Land Commissioner, Multan was also -rejected per order, dated the 18th February, 1964.
7. Noor Jamal respondent No, 9 also made an application which was dismissed vide older, dated 5-5-1973.
Thereafter, respondents Nos. 1 to 9 filed a revision petition against the order, dated 5-5-1973 passed by the Assistant Land Commissioner, Rajanpur, before the learned Additional Land Commissioner, Punjab which was dismissed as well, on 14-3-1974. Then they filed a revision before the learned Land Commissioner which also resulted in dismissal per order, dated 12-6-1974. Thereafter, the respondents moved a revision application, dated 17-3-1975 before the learned Chairman, Federal Land Commission under paragraph 29 of M. L. R. 115 of 1972 challenging the order of the Sub-Assistant Land Commissioner, Rajanpur, dated 4-4-1960 whereby names of the appellants were incorporated in Register L. C. IX, which was accepted vide order, dated 3-1-1976 setting aside the orders of S. A. L. C. Rajanpur, Deputy Land Commissioner, Land Commissioner and the Additional Land Commissioner, directing restoration of the original entries in Khasra Girdawari by deleting the names of the appellants, and cancelled their allotment. The said order reads as follows (parapraphs 12 and 13) : "In view of what has been discussed above, I accept the revision petition, in exercise of suo mow revisional powers under paragraph 29 of M. L. R. 115 as amended, and set aside all the orders passed by the Sub- Assistant Land Commissioner, Deputy Land Commissioner, Land Commissioner and Additional Chief Land Commissioner relating to the disputed land, and direct that the original entries in the Khasra Girdwari be restored by deleting the names of the respondents and the allotment secured by them on the basis of these entries, is hereby cancelled. It is also directed that the entire land should be allotted to deserving persons who are found eligible under the law by the competent authority.
13 It is directed that the competent authority, should evaluate the tube-well and also work out the price of land paid by the respondents. The price of land so evaluated, should be refunded to the respondents. The price of tube-well will be paid by the new allottee to whom the land under tube-well will be allotted. If he did not accept the assessed price, the respondents can remove the same at their own cost."
' Thereafter, writ petition was filed by the appellants which was dismissed vide the impugned judgment, dated 22-11-1980 of the Lahore High Court.
8. Learned counsel's contentions are that the appellants were denied reasonable opportunity, to make their defence, by the learned Chairman, Federal Land Commission without disclosing the grounds on which revisional powers were sought to be exercised ; that the appellants were entitled to a show-cause notice which was never issued to them ; that they learned about the date of hearing and that suo motu powers were sought to be exercised by the learned Chairman, Federal Land Commission which were not communicated to the appellants even at the time of hearing of their revision ; that the suo mow powers could be exercised, if at all, only by calling the record and allowing the appellants to produce evidence necessary for the determination of the question in dispute ; that the respondents Nos. 1 to 9 had filed their application, dated 17-3-1975 before the Federal Land Commission earlier to the promulgation of the Land 'Reforms (Amendment) Act, 1975 (Act XXIX of 1975). The date of promulgation of the above-said Amendment Act is 18-4-1975. The words "under the repealed Regulation" were inserted in paragraph 29 of the Land Reforms Regulation, 1972 by the said Amendment Act. Therefore, prior to the enforcement of the above-said Act, if any order was passed under the existing period of repealed Regulation, it could not be re-opened under the provision of para. 29 of Regulation, 1972 ; that the learned Chairman, Federal Land Commission also ignored the material evidence :
(i) the various revenue officials' reports,
(ii) continuous entries in the revenue record,
(iii) record of appellant No, 2 namely Muhammad Aslam as to when he joined service, the order of Chairman, Federal Land Commission if closely examined, the date of service which stood clearly determined was erroneously assumed and acted upon. ' that the suo motu powers have been vested in the Commission and the learned Chairman singly and by himself, could not decide the matter. Moreover, the Chairman, Federal Land Commission was biased against the appellants. The learned counsel for the appellants lastly argued that even if it is conceded that the Chairman exercised suo motu powers correctly, the same were not available in respect of the sale where the entire price had been paid and its corpus stood transferred to the appellants once the title deeds were issued in their favour.
Thus, the finding of the learned Judges that the matter was finally concluded by the finding of fact is wholly erroneous ; that they never adverted to lack of affording opportunity and the misreading of evidence. The parties were directed to file concise statements on 16-6-1983. The appellants tiled their statements almost reiterating the points as raised in the petition with reference to documents i. e. Jamabandis 1895-1896, 1915-1916, 1918- 1919, 1930-1931, 1935-1936, 1938-1939, 1950-1951 and Khasra Girdawaris 1950-1951, 1965 and 1968.
Respondents Nos. 1 to 9, in their concise statements, denied that the appellants were the residents of Chak Soon Miani, Tehsil Rajanpur during the year 1958-59, nor were they in cultivating possession of the land in dispute during Kharif 1958 and Rabi 1959 and the documents filed by them related to different areas and are of much earlier period; that appellant No, 2 namely Muhammad Aslam, according to his School Leaving Certificate was hardly about 16 years old at the relevant time, therefore, he could not be in cultivating possession of the area in dispute ; that through fraud and misrepresentation the appellants tried to link up with Gamun and Pal ia to show that they were in joint cultivating possession ; that the Declaration filed by the land-owner in respect of the land in question, under M. L. R. 64 of 1959 also does not show that the appellants were in cultivating possession, nor were the appellants mentioned in Register L. C. IX ; that the appellants, in collusion with some Revenue officials got their names incorporated in the reports of an enquiry conducted behind the back of the respondents and on the basis of this report the Sub-Assistant Land Commissioner on 4-4-1960 and 27-4-1960 ordered that the names of the appellants be included in register L. C. IX; that the appellants were never in possession of the land, in question, therefore, any question of improving the land or installing a tube-well by them does not arise ; that the tube-well was, in fact, sunk by the respondents vide report of Naib-Tehsildar, Rajanpur dated 30-4-1973; that the Chairman, Federal Land Commission passed the order dated 3-1-1976,after giving full opportunity to the appellants; that after the said order of the Federal Land Commission, dated 3-1- 1976, survey was carried out by Tehsildar, Naib-Tehsildar, alongwith Patwari, and site plan Exh. R.A. Was prepared showing Khasra numbers alongwith area of respective occupant. The said Site Plan shows the respondents to be in actual possession of the land in dispute ; a report Annexure `R/B' was also prepared which was sent to the D. C. Collector, Rajanpur showing the respondents to be in continuous possession of the said land ; Register Haqdaran for the year 1980-81 (Annexure '11./D.') also shows the respondents in possession; Khasra Girdawari for 1971, 1974, 1980-81 and 1981-82 show the respondents to be in cultivating possession ; the mutations sanctioned in favour of the appellants were cancelled in January 1981 vide Annexures R. F. 1 and R. F. 2 ; the order of the Sub-Assistant Land Commissioner in 1960, whereby names of the appellants were incorporated in Register L. C. IX was void and illegal ; applications for correction of L. C. IX and XI were made by the appellants on 27-2-1960 and 13-3-1960 whereas the entries in the relevant registers were made earlier.
9. The first question i. e. Whether the learned Chairman, Federal Land Commission, acting singly, could pass an order under paragraph 29 of M. L. R. 115 of 1972 is answered in a judgment of this Court in Mst. Aisha Begum and others v. Chairman Federal Land Commission (I) wherein it was held : The conferment of the power under para. 29 of the Regulation was taken to be on the group as such and not on the individuals making that group. It is not necessary at this stage to go into the correctness of the view because, taking notice of the decisions and assuming the alleged infirmity, a curative statute (Ordinance XXIX of 1978) was enforced. It takes note of the omission, the infirmity 8 or the lacuna and proceeds to validate, if, and in so far as, the decisions given suffered from that particular infirmity and no other. The learned counsel for the petitioners argued that the infirmity was of a nature which could not be cured by validating legislation. The power of the Legislature to legislate retrospectively and such retrospectively could extend to curing of past errors, omissions and neglect is not disputed but the contention is that the decisions which were coram non judice, could not be brought back to life. We are not aware of any such limitation on the powers of the legislature in enacting curative or validating statutes. Such statutes, on the C other hand, have the sole object of curing past errors, omissions and neglect and it is intended to give legal effect to a past act ineffective because of non- compliance with legal requirements..."
' It was further observed in the same judgment : "The avowed object of the curative act now under consideration was to rectify the illegality that had crept in and had been taken note of in the decision referred to. There being no impediment or fetters D on the legislative power to achieve such a curative effect, the same cannot be defeated by an argument not based on any principle or provision of law.
10. A reference may be made here to Land Reforms (Amendment) Act, 1975 (XXX1X of 1975). In the Land Reforms Regulation, 1972 in paragraph 29- "(a) after the words 'this Regulation' twice occurring the words 'or under the repealed Regulation' shall be deemed always to have been so inserted ; and {{FOOT NOTE}}
(1) 1982 SCMR 1974 {{FOOT NOTE}}
(b) in the third proviso, in clause (a) for the figures, letters, words and comma `1st day of March, 1975' the figures, letters, words and comma '30th day of September, 1975' shall be substituted and shall be deemed to have been so substituted on the first day of April, 1975".
11. The second contention that the appellants had no notice of the exact grievance against them, nor they had been afforded an opportunity to prove their case requires examination keeping in view the order of the Federal Land Commission, dated 3-1-1976 wherein it is stated in paragraph (6) : "The learned counsel for the respondents has contended that the petitioners have no locus standi, because of the fact that they did not challenge the order of the Sub-Assistant Land Commissioner passed on 4th April, 1960 and had failed to appeal against the allotment order. He also raised a legal objection that Federal Land Commission has no suo mom powers with respect to the cases decided under M. L. R. 64 ..."
' Furthermore, it is recorded in the same order : "the learned counsel for the respondents submitted that this case had been enquired into even earlier by the Revenue Officer on whose finding the allotment order was passed and for this reason, all applications and appeals made by the petitioners had been rejected."
' This shows that the petitioners/appellants were given reasonable opportunity to appear and defend their case and no such grievance can be made at this stage that they were neither heard nor afforded an opportunity to defend their claim. They had the time and notice of the proceedings before the Federal Land Commission.
12. Another point urged is that the appellants had been sold the land in dispute not only on the basis of tenancy but on the basis of selection from amongst other persons eligible to purchase the land in dispute, cultivation being one of the qualifications and not the only qualification for consideration. In this connection report of the Naib-Tehsildar L. R., dated 20-9-1961 is as follows :- {{URDU TEXT}} ' It shows that the petitioners' names are not mentioned in the harvests produced in Kharif, 1958 and Rabi 1958-
59. Later on it came to light that they were residing in this village for sufficiently long time. Here, it would be worthwhile to mention that there may be other persons entitled to the allotment of the land in question besides the respondents and the order of the Federal Land Commission is to this effect also. The case has been remanded to the Land Commission authorities with the directive to go into the question of entitlement of deserving persons who are found eligible under the law- this does not, in my view, preclude the appellants from establishing their title to the land in dispute. This appeal is, therefore, dismissed, and, in this circumstances, there shall be no order as to costs.