' AIMAL MIAN, J.-The petitioners through this petition have prayed for the following reliefs :- "6. That in view of the above petitioners above-named pray for judgment as under :-
(1) That this Hon'ble Court may be pleased to declare the impugned order (Annexure 'K') to have been passed by the respondent No, 1 abovenanied without ainy lawful authority and to be of no legal effect.
(ii) That this Hon'ble Court nay be pleased to declare that the respondent No, 1 has got jurisdiction in the case by virtue of section 4-A (2) of the Land Reforms (Amendment) Act of 1973 and by virtue of section 32 of the Land Reforms Regulation, 1972 (M. L. R. 115).
(iii) That this Hon'ble Court may be pleased to declare that the alienation of 43-26f Acres made on 12th July, 1960 by Saifuddin petitioner in favour of respondents Nos. 5, 9 & 10 and alienation of 66-311 Acres made by Muhammad Bux petitioner, dated 12th October, 1960 in favour of respondent No, 12 and all other transactions made by the petitioners either singly or jointly thereafter being subsequent transactions following void transactions are also void.
(iv) That this Hon'ble Court may y be pleased to grant any other alternate relief that may be considered to be just and fair in the circumstances of the case.
(v) That the costs of the writ p edition be borne by the respondents."
2. The brief facts leading to the filing of the above petition are that the petitioners who are inter se real brothers jointly owned agricultural land measuring 457-37 Acres, situated at Deh Kathgarh, Tapa Gulanpur, Taluka Kashmore, District Jacobabad, Sind. It seems that the petitioners during the period commencing from 1959 to 1966 alienated under registered sale-deeds of the above land except that they were left with Survey numbers 347, 350 and 357 to the extent of 0-3-1 and 2-12 Acres which they had inherited from their father in 1951. The detail of the above alienations is given kn para. 2 of the petition. It further seems that in the year 1969 the petitioners made an application to the Sub-Martial Law Administrator, Khairpur, alleging therein, that the above transactions were not outright sales but mortgages and, therefore, they be allowed to redeem the above mortgages.
The above application was forwarded to the Deputy Commissioner, Jacobabad, who by his order, dated 25th June, 1970 dismissed the petitioners' above application. The petitioners being aggrieved by the above order filed the appeal before the Commissioner, Khairpur Division, who by his order, dated 8th June, 1972 rejected the same. The revision filed by the petitioners also met with the same fate and was rejected by the Member of the Board of Revenue, Sind, by his order, dated 16th November, 1974. After that petitioners moved an application before the Deputy Land Commissioner, Jacobabad, in the year 1975 requesting him to cancel the transaction of the sale made on 12th July, 1960 by petitioner No, 1 reducing him share from economic size down to 37-0 Acres and alienation of 66-31k by petitioner No, 2 Muhammad Bux on 12th October, 1960 bringing his share of land from economic size to 10.0 acres, but the above application was rejected by the Deputy Land Commissioner, Jacobabad, by his order, dated 21st January, 1976. The petitioners being aggrieved by the above order filed appeal before the Commissioner/Land Commissioner which was also dismissed by him by his order, dated 19th May, 1975. The petitioners went in revision before the Chief Land Commissioner, Sind, which was also dismissed by him by his order, dated 4th January, 1977. After that the petitioners filed a revision under para. 29 of M. L. R. 115 before the Federal Land Commission, which was allowed by the then Senior Member by his order, dated 28th August, 1978 to the extent mentioned hereinbelow.
"In the result the alienations of 43.261 made on 12th July, 1960 and 66-31k acres made on 12th October, 1960, are declared void along-with all subsequent transactions by any or either of the petitioners. The areas alienated shall be considered to be the property of the petitioners and all other necessary legal consequences shall follow therefrom. The D. L. C. Is directed to implement this order accordingly."
' Some of the parties filed constitutional petition, namely Constitutional Petition No, D-1469/1978 in the High Court of Sind, which was allowed by a Division Bench by its order, dated 5th November, 1979 and the case was remanded to the Federal Land Commission for decision afresh on the ground that all the parties were not heard. After the above remand order the Member of the Federal Land Commission passed the impugned order, dated 21st January, 1981 holding that it has no jurisdiction to entertain the application of the nature filed by the petitioners. The petitioners being aggrieved by the above order have filed the present petition and have prayed for the reliefs quoted hereinabove in para. (1).
3. (a) Mr. Muhammad Aslam Bhutto learned counsel for the petitioners has vehemently urged that since the transactions which reduced the petitioners' holdings below the economic holdings were in violation of para. 25 of M. L. R. 64 i. e. West Pakistan Land Reforms Regulation respondent No, 1 i,e, Member of the Federal Land Commission was competent by virtue of para. 32 (2) (d) of M. L. R. 115 to adjudicate upon the petitioners' above revision. Mr. Zawwar Hussain Jaffari learned A. A.-G.
Appearing for the official respondents has also urged that respondent No, 1 has the jurisdiction in the matter.
(b) On the other hand Mr. Imam Ali Kazi, learned counsel for the private respondents has contended that neither under M. L. R. 64 nor under M. L. R. 115 respondent No, 1 of the other respondents i. e. The Deputy Land Commissioner or the Land Commissioner or the Chief Land Commissioner, Sind, had any jurisdiction.
4. (a) In order to appreciate the above contention of the learned counsel for the parties, it may be advantageous to refer to the relevant provisions of M. L. R. 64 and M. L. R.
115.
(c) It will be advantageous first to refer to provisions of M. L. R.
64. The above M. L. R. Was enacted in 1959 and was made applicable to the then whole of West Pakistan including the Federal Capital but excluding the special, area para. 3 of the above Regulation provided that it was to override anything contrary contained in any other law or order or decree of any Court or authority, whereas para. 4 contemplated the constitution of Commission called West Pakistan Land Commission with all the powers necessary for the implementation of the Regulation. Para. 5 provided delegation of powers to the officers to be notified to the extent mentioned in the notification. Furthermore, para. 7 provided certain transfers void effected by the person who on or before 8th October, held an area more than 500 Acreas of irrigated land or area equivalent to more than 36,000 produce index units. It may also be mentioned that para. 8 provided the limit of individual holding, namely, 500 Acres of irrigated land or 1,000 Acres of unirrigated land. One acre of irrigated land was to he reckoned to be equivalent to two acres of unirrigated land. Paras. 9 to 13 dealt with various other topics, namely, exemption from the application of the M. L. R. Waqf lands, female dependents, bodies corporate and share in Shamilat.
It may further be stated that para. 14 contemplated the exercise of option to retain the land of his choice to the extent permissible. It may also be mentioned that para. 15 provided that Commission may by an order published in the official Gazette, direct persons who owned or possessed land in excess of 500 Acres of irrigated land to submit to such authority in such manner and form and by such date as may be specified in the order, declarations in respect of areas owned or possessed by such persons, areas for which they claim exemption under the Regulation, areas gifted or received by gift on or after 14th day of August, 1947, areas transferred or alienated by them on or after 8th day of October, 1958, areas selected for retention by them and such other information as the Commission may require. It may further be observed that para 16 empowered the Government to resume excess land, whereas para. 19 provided the manner of disposal of excess land. It may also be pertinent to refer to para. 23, which provided restriction on partition of joint holding below the subsistence holding. It may also be mentioned that para. 24 related to the management of impartible joint holdings, It may further be stated that para. 25 provided restrictions on alienations which might reduce the size of holding to area below the minimum of economic holding. Since this is the basic para., which has been relied upon and of which infringement has been complained of by the petitioners, it may be advantageous to reproduce hereinbelow the same which reads as follows :- "25. Restrictions on alienation of holdings-
(1) No person owning more than the area of an economic holding shall be allowed to alienate by sale, mortgage, gift or otherwise any portion of his holding which may reduce the size of his holding to an area below the limit of an economic holding : ' Provided that such a person may alienate his entire holding.
(2) No person owning an economic holding shall be allowed to alienate by sale, mortgage, gift or otherwise any portion of his holding : ' Provided that such a person may alienate his entire holding.
(3) No person owning more than the area of a subsistence holding but less than an economic holding shall be allowed to alienate by sale, mortgage, gift or otherwise any portion of his holding which may reduce the size of his holding to an area less than the area of subsistence holding : ' Provided that such a person may alienate his entire holding.
(4) No person owning an area equal to or less than a subsistence holding shall be allowed to alienate by sale mortgage, gift or otherwise any part of his holding : ' Provided that such a person may alienate his entire holding, or in the case of a holding which is less than a subsistence holding, sell any part of his holding to other owners of the same village, Deh or Mauza.
' Nothing in this paragraph shall apply to land whether cultivable or otherwise which is bona fide required for the purpose of building thereon, and any tenant in possession of such land who refuses to quit after notice may be evicted under the order of the Deputy Commissioner.
(5) Any alienation made in contravention of provisions of this paragraph shall be void."
' It may be noticed that the above para. As observed hereinabove provided restriction on alienation of holding which would result in reducing the size of holding to an area below the limit of economic holding but it provided that the entire holding can be disposed of by a person. Furthermore, it has been provided that any alienation made in contravention of the provision of this paragraph shall be void.
' It may be observed that para. 27 bars the jurisdiction of civil Court, whereas para. 29 provided offences and penalty for contravening or failing to comply with the above Regulatio, namely, maximum punishment seven years' R. I,
(c) The above M. L. R. 64 was replaced by M. L. R. 115 in 1972. It has more or less similar provisions as were contained in M. L. R. 64 except with certain additions and modifications. It may be pertinent to refer to the relevant additions and modifications. It may be pointed out that para. 4-A contemplates constitution of a "Federal Land Commission in additional to Provincial Land Commission under para.
4. Furthermore, under para. 8 limit of holding was reduced to 150 Acres of irrigated land in place of 500 Acres irrigated land and 300 Acres unirrigated land in substitution of 1,000 Acres unirrigated land provided in M. L. R.
64. It may also be mentioned that para. 29 has provided revisional powers of the Federal Land Commission, whereas para. 29-A empowered the President of Pakistan to reduce the limit of the holding. Furthermore, para. 30 provides offences and penalties for contravening or failing to comply with the above Regulation, maximum punishment 7 years' R. I. It may also be mentioned that para. 31 has laid down that no court shall take cognizance of an offence under the Regulation except on a complaint in writing made by order, of, or under authority from the Commission whereas para. 32 deals with the repeal and saving.
5. (a) After having reviewed the relevant provisions in the two M. L. Rs, it may be pertinent to deal in detail the relevant provisions of M. L. R. 115, which have direct bearing on the question of jurisdiction of respondent No, I i,e, Member of the Federal Land Commission. In this context it may be advantageous to reproduce hereinbelow para. 4-A, para. 5, para. '29 and para. 32, which read as follows :- "4-A. Constitution of Federal Land Commission, etc.-(1) For the purposes of this Regulation there shall be constituted a Commission to be known as the Federal Land Commission consisting of Federal Minister nominated by the Federal Government, who shall be its Chairman, and not more than three members to be appointed by the Federal Government.
(2) The Federal Land Commission shall exercise and perform all such powers and functions as may be necessary for implementation of this Regulation throughout the areas to which it extends and shall in particular :- #TBS (i) #TBE assist the Federal Government in deciding any dispute or difference referred to in sub-paragraph
(7) of paragraph 4 and in giving any approval or direction under sub-paragraph (8) of that paragraph ;
(ii) against the Federal Government in the exercise of its revisional powers under paragraph 29 ;
(iii) co-ordinate the work of the different Commissions to ensure that a uniform policy is followed in all the Provinces in implementing the provisions of this regulation ; and
(iv) lay down general guidelines to be observed by the Commissions in carrying out their duties and functions under this Regulation and issue from time to time such instructions as may be considered necessary.
(3) The Federal Land Commission may make rules to regulate its procedure and appoint its own officers and servants and confer powers upon, and assign duties, to them,
(4) The Federal Land Commission may direct that the powers exercisable by it under this paragraph may subject to such conditions, if any, as may be specified by it, be exercised also by any of its members or officers empowered by it, in this behalf.
"5. Delegation of powers.-A Commission may, by notification in the official Gazette direct that the powers exercisable by it under this Regulation may, subject to such conditions, including provision.
Para. 5.-one as to appeal, revision or review, if any, as may be specified in the notification, be exercised also by any of its members or officers or authorities subordinate to it : ' Provided that a Commission shall not delegate its powers under sub-paragraph (2) of paragraph 7 to an officer below the rank of a Commissioner of a Division."
"29. Revisional powers of the Federal Government.-The Government, or any person authorised by it in that behalf, may at any time, of its or his own.
Para. 29.-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 cases 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 afforded 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 authorised 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."
"32. Repeal and saving. -(l) The West Pakistan Land Reforms Regulation-(Regulation 64 of 1959), hereinafter referred to as the said Regulation, is hereby repealed.
' Para. 32.-(2) Subject to the other provisions of this Regulation, the repeal of the said Regulation shall not effect-
(a) The previous operation of the said Regulation or the validity/invalidity effect or consequences of anything already done or suffered thereunder ; or
(b) any right, title, privilege, obligation or liability acquired or incurred thereunder ; or
(c) Any penalty, forfeiture or punishment incurred in respect of any offence under the said Regulation ; or
(d) any investigation, legal proceedings of remedy in respect of any such right, title privilege, obligation, liability, penalty forfeiture or punishment as aforesaid ; and any such investigation, legal proceedings, or remedy may be instituted, continued or enforce and any such penalty forfeiture or punishment, may be imposed as if this Regulation had not been made.
(3) Any proceeding pending before an authority constituted or appointed under the said Regulation, immediately before the coming into force of this Regulation, shall stand transferred to such authority constituted or appointed under this Regulation as the Commission may by order published in the Official Gazette, specify in this behalf, and the authority to which such proceedings are transferred shall in such proceedings ; act in accordance with the provision of the said Regulation, as if it had been appointed under the said Regulation.
(4) land vesting in Government under the repealed Regulation and not granted to any person before the repeal thereof shall be disposed of or utilized by Government as far as may be in accordance with the provisions of Part V.
(b) It may be noticed that under para. 4-A, the Federal Land Commission has been empowered to exercise and perform all such powers and functions as may be necessary for implementation of the Regulation throughout the areas to which it extends and shall in particular assist the Federal Government in the matters enumerated in sub-paras. (2) to (iv). It has also provided that the Federal Land Commission may direct that the powers exerciseable by it under this paragraph subject to such conditions, if any, as may be specified by it, be exercised also by any of its members or officers empowered by it, in this behalf. It may further be observed that para. 5 provides that a Commission may, by notification in the official Gazette direct that the powers exerciseable by it under the Regulation may subject such conditions, including provisions as to appeal revision or review, if any, as may be specified in the notification, be exercised also by any of its members or officers or authorities subordinate to it subject to proviso that the Commission shall not delegate its powers under sub-paragraph (2) of paragraph 7 to an officer below the rank of a Commissioner of a Division.
' It may also be noticed that under para. 29 it has been provided that the Federal Government or any person authorised 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 cases or class of cases in which it desires to pass final orders and provided that no order revising or modifying an order is to be passed without hearing the affected person. It is further provided that the record of any case or proceedings, in which a Commission or other authority has passed the order shall not be called for under the above paragraph by the Federal Government or the person authorised by it on its or his own motion after 30th of November, 1976, or on the application of any aggrieved person made after the expiration of 60 days from the date of such order or from the enactment of the Land Reforms (Amendment) Act, 1973, whichever is later, excluding the time requisits for obtaining a copy of such Order.
' It may also be pertinent to mention that para. 32 has repealed M. L. R. 64 but saves orders, actions taken under the above repealed Regulation. It has also provided under clause (d) of sub-para. (2) that it shall not affect any investigation, legal proceedings or remedy in respect of any such right, title privilege, obligation liability, penalty forfeiture or punishment as aforesaid and that any such investigation, legal proceedings, or remedy may be instituted, continued or enforced and any such penalty, forfeiture or punishment, may be imposed as if this Regulation (i,e, M. L. R. 115) had not been made.
6. (a) It may be mentioned that Mr. Aslam Bhutto learned counsel for the petitioners has particularly relied upon the above saving clause and it has been vehemently urged by him that even after the repeal of M. L. R. 64 the fresh proceedings for infringment of the repealed M.L.R. Can be initiated and prosecuted. It may be mentioned that the Sind Land Commission in exercise of powers vested in it under paragraph 5 has delegated powers under notification No, S. L. C-1/72/7 to the officers to the extent mentioned herein. It may be pertinent to produce the above notification which reads as follows "No, S. L. C-1/12/7.-In exercise of the powers vested under paragraph 5 of Land Reforms Regulation, 1972 (Martial Law Regulation 115), the Sind Land Commission is pleased to delegate- to the following officers, the powers mentioned against each :-{{TABLE }} Power Authority to whom Delegated
(1) Powers to decide whether any transfer etc., is or is not void, vesting in the Sind Land Commission under paragraph 7 of Land Reforms Regulation, 1972 (M. L. R. 115) Chief Land Commissioner Sind and Land Commissioner Sind, only.
(2) Power to allow an existing owner required to file declarations under paragraph 12 of the Regulation to retain the area permitted under paragraphs 8, 9, 10 and 11 of the Regulation and powers to pass orders under paragraph 13 of the Regulation.
(3) Powers to decide in consequence of declaration under paragraphs 12 (2) and 14 of the Regulation.
(4) Powers to resume all areas under stud or livestock Farms under Paragraph 15 of the Regulation.
(5) Powers to resume all areas under Shikargahs under paragraph 16 of the Regulation.
(6) Power of demarcations and partition of land vesting in the Land Commission under paragraph 13 (1) of the Regulation.
(7) Powers of certifying under paragraph 8, Part III of M. L. R. 115 of 1972 whether or not the agricultural tractor owned by a person claiming retention of additional area upto 3,000 P. I. Us. Was in good working order on 20th December, 1971 (Paragraph 8 (2) (1) or there was installed on his land a tubewell of not less than ten horse-power (paragraph 8 (2) (ii).
' Deputy Land Commissioner (Deputy Commissioners) of the Districts, -Do- -Do- -Do- ' Assistant Land Commissioner (Assistant Commissioner) within his respective jurisdictions.
' Assistant Land Commissioner of the Sub-Divisions concerned.
(b) It may be noticed that under the above-quoted notification no officer has been delegated power to examine the question that a transaction or an alienation involves reduction of holding below the economic holding nor there was any such notification under the repealed M. L. R.
64. In other words, neither M. L. R. 64 nor M. L. R. 115 has provided any forum to entertain an application by a private person for the purpose of examining whether an alienation involves reduction of holding below the economic holding nor it has been provided that the Commission can entertain such an application. The revisional power contained in para. 29 referred to hereinabove only contemplates calling for file of pending proceedings or proceedings in which an order has been passed under the Regulation and not calling for the file of any proceedings not pending and in which no order has been passed under the Regulation. The Deputy Land Commissioner in the instant case had no power to entertain the petitioner's miscellaneous application for the purpose of declaring that the alienations made by them reducing their holding below that economic holding were void as the powers of the Deputy Land Commissioners are specified in the above-quoted notification which are confined to paras. 8, 9, 10, 11, 12, 14, 15, whereas the power of the Chief Land Commissioner Sind, was confined to decide whether a transaction was void or not. It is, therefore, evident that the petitioners' above application before the Deputy Land Commissioner was not competent and was rightly dismissed by him. Similarly, the appeal, revision arising therefrom were not competent nor the revision before the Federal Land Commission under para. 29. It is true that para 25 of the repealed M. L. R. 64 prohibited the alienation which would reduce the holding of an alienator below the economic holding and it also provided that such transaction would be void. Any violation of the above para 25 amounts to contravention of the repealed M. L. R. 64 warranting taking of penal action by the Commission under para. 29 of the repealed M. L. R. 64 or under para. 30 read with para. 31 of M. L. R. 115 but no application by a party, who is himself the person, who has infringed para. 29 of the repealed M. L. R. Can be filed before any of the forms provided under the repealed M.
L. R. 64 or under the present M. L. R. 115.
7. Apart from the question of jurisdiction, it may be observed that there are certain basic principles in relation to invoking of constitutional writ jurisdiction of a High Court and exercise of this discretionary jurisdiction by the Court. It may further be observed that it is one of the cardinal principles that one who presses into service constitutional C jurisdiction of the Court should come with clean hands. It is also a well-settled principle of law that the High Court will not exercise constitutional jurisdiction, which will result in miscarriage of justice instead of fostering the cause of justice. Applying the above principles to the instant case, the petitioners have no case. Admittedly the petitioners have themselves sold the land to the respondents in the years 1959 to 1966. It may be pointed out that most of the land was sold by 1960 and according to the first order of the Federal Land Commission, dated 28th August, 1978 referred to hereinabove the alleged infringement of para. 25 took place in 1960. The respondents after having paid the price, have been in cultivating possession since then. The petitioners first attempted to get away from the transactions by alleging that they were not the sale transactions but transactions of mortgage, which attempt failed and, thereafter the petitioners started second round of D litigation by moving a miscellaneous application before the Deputy Land Commissioner for seeking declaration that above sale transactions were void in view of the aforesaid para. 25 of the repealed M. L. R.
64. It is evident that the petitioners have not approached this Court with clean hands the petitioners after having pocketed the price of the land in 1960 which to wriggle out from the above transactions. We are inclined to hold that in the instant case exercise of writ jurisdiction juctice grill result in miscarriage of justice instead of fostering justice. We are, therefore, not inclined to exercise writ jurisdiction in favour of the petitioners, even if it is to be held that respondents have jurisdiction in the matter.
' For the aforesaid reasons the above petition is dismissed with no order as to costs.