' AJMAL MIAN, J.-- This petition is directed against order, dated 8th September, 1981, passed by respondent No.
1. The brief facts leading to the filing of the above petition are that petitioner No. 1 on 25-2-1976 made a statement of gifts in favour of petitioners Nos. 2 and 3 and respondent No. 3 and his second wife Mst. Sami who has since then expired before the Mukhtiarkar concerned in respect of the agricultural land, the detail of which is given in para. 3 of the petition. Upon the promulgation of M.L.R. 115 (hereinafter referred to as the M.L.R.) in March, 1972 petitioner No. 1 filed the requisite declaration. The Land Commissioner Sind by his order, dated 20th June, 1972 upheld the above gifts on two grounds, namely, that the gifts were in favour of the specified legal heirs, and, secondly they were made prior to 1st March, 1972 and therefore, were, beyond purview of M.L.R. After that respondent No. 1, in exercise of suo motu revisional powers contained in para. 29 of the M.L.R. by his order, dated 18-10-1976 declared the above gifts as invalid. The petitioner being aggrieved by the above order filed Constitutional Petition No. D-134 of 1977 in this Court, which was allowed by a Division Bench vide. Judgment, dated 16-11-1981. It may be pertinent to reproduce para. 6 of the above judgment which reads as follows:- "It is, however, urged by Mr. Azhar Ali Siddiqui, learned counsel appearing for first respondent that in view of the fact that aforesaid important evidence available on the official records was not brought to the notice of the learned officer, the case may be remanded for fresh decision. Mr. Khalid Ishaque submitted that in view of section 25 of the Land Reforms Act II of 1977 an order of remand will prejudice the interest of the petitioners, in so far as, according to him all pending proceedings abated on the coming in force of the aforesaid Act, and therefore, this case cannot be remanded to the same Authority for fresh decision. Without going into the question whether these proceedings would abate under the aforesaid provisions of law, we feel that in the view that we have taken the impugned order should be set aside as having been passed without lawful authority and being of no legal effect. We leave the respondents, however, free to take fresh proceedings if available under the law and it will be open to the petitioners to raise any objection that may be available to them regarding the maintainability of such proceedings."
' After the above judgment respondent No. 1 again in purported exercise of suo motu revisional powers by impugned order, dated 8th September, 1981, declared the gifts in favour of petitioners Nos. 2 and 3 as invalid and deceased Mst. Sami and upheld the gift in favour of respondent No.
3. The petitioners being aggrieved by the above order have filed the present petition.
2.(a) In support of the above petition Mr. Mushtaq Memon learned counsel for the petitioners has urged that in view of proviso 3 to para. 29 incorporated by Ordinance No. 35 of 1976 (Act No. XIV of 1976), it was not open to respondent No. 1 to have taken cognizance of the present case under para. 29 of the M.L.R.
(b) On the other hand Mr. Mahmood lqbal, learned counsel for respondents has contended as follows:-
(i) That the petition is not competent.
(ii) That since the record was already with respondent No. 1, there was no need of sending for the record of proceedings in terms of the above proviso and, therefore the date mentioned therein has not been violated.
3.(a) In order to appreciate the contentions of the parties it may be pertinent to quote proviso 3 of para. 29 of the M.L. R. which reads as follows: "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."
' It may be noted that the above proviso places two embargoes against invoking of the above para. 29 namely that the record of any case or proceedings in which the Commissioner or other authority has passed an order cannot be called of its or his own motion after 30th day of November, 1976, and, secondly, on the application of any aggrieved person after the expiration of sixty days from the date of such order or from the enactment of Land Reforms (Amendment) Act, 1973, whichever is later, excluding the time requisite for obtaining a copy of such order.
(b) Mr. Mahmood lqbal learned counsel for the respondents has candidly invited our attention to the case of Haji Ali Bux Khan and 3 others v. Chief Land Commissioner, West Pakistan, Lahore and others reported in 1979 SCMR 98, in which the Hon'ble Supreme Court observed as follows as to the Jurisdiction of the Civil Court:- "In view of the above decision, the bar of jurisdiction under para. 27 is limited after the promulgation of the Constitution to orders which were in substance and form made in compliance with the Regulation. In the present case, the order not recognising the decree passed against the heirs of Mir Budho Khan was communicated on the 30th October, 1962 much after the date of the promulgation of the Constitution of 1962. The second order dismissing the application for review was also passed on the 23rd September, 1963. It will be seen that this order was also passed after the promulgation of the Constitution. It was, therefore, open to the High Court to consider the validity of the above two orders and to come to a conclusion whether the order of the Land Commission was passed in substance and form in compliance with the Regulation. The High Court was, therefore, wrong in not entertaining the application and in dismissing the writ petition."
4. If we were to hold that the impugned order is beyond the purview or in violation of para. 29, the above writ petition will be competent in view of the above observation of the Hon'ble Supreme Court. In the instant case, it is evident from above-quoted para. 6 of the aforesaid judgment, dated 24-2-1981 given by a Division Bench of this Court in aforesaid Constitutional Petition No. D-134 of 1977 that the request for the remand of the case made by the learned counsel then appearing for respondent No. 1 was declined and it was observed that "the respondents were free to take fresh proceedings if available under the law". In the present case after the declaration by the High Court that the aforesaid order, dated 18-10-1976 passed by respondent No. 1 was without lawful authority factually no proceedings were pending before respondent No. 1 in respect of the subject-matter of the petition. The present proceedings have been initiated. admittedly after 30th November, 1976.
We are unable to agree with the contention of Mr. Mehmood lqbal, learned counsel for the respondents, that since respondent No. 1 had not sent for the record of the proceedings for the reason that the matter was previously dealt with by him, there is no violation of the above-quoted proviso to para.
29. In our view, the proviso 3 prohibits taking of congnizance under suo motu revisional powers after 30th November, 1976. In the instant case respondent No. 1 has taken cognizance of the case in 1981 which was not permissible by virtue of the above proviso. We are, therefore, inclined to hold that the impugned order is in violation of the above proviso to para.
29. We, therefore, declare the above order as being without lawful authority and of no legal effect.
However, there will be no order as to costs.