' ABDUL SHAKURUL SALAM, J.-Petitioner sold land measuring 229 acres 1 Kanal and 8 Marlas situated in village Shirin Deh. & District Rahimyar Khan for Rs, 1,19,563 in favour of respondents Nos. 2 and 3.
Intimation was given to the Patwari concerned who made a corresponding entry in the Roznamcha on 2-12-1971. Mutation No, 710 was entered into on the same day. It was certified by the Girdawar Qanogo on 5-1-1972. It was attested by the Revenue Officer on 6-1-1972. In pursuance of the provisions of Martial Law Regulation No, 115 the petitioner filed a declaration showing the aforesaid sale. It was not accepted by the Deputy Land Commissioner vide order dated 1-6-1972. The petitioner's appeal was rejected by the Land Commissioner on 15-6-1972. The petitioner filed a revision petition. It was taken by the learned Chief Land Commissioner. During the course of proceedings, on 20-3-1973 the learned Chief Commissioner held as far as relevant for purposes of this petition as follows :- "For purposes of satisfying itself whether a transaction is bona fide or not the Commission has to deal with the criteria laid down in Explanation III. All the provisions of Explanation. It has been fulfilled namely adequate consideration has been paid for the land, the land is under the management of the vendees as has been ascertained from entries in the Khatuni of the Irrigation Department The vendees have been paying the land revenue as is evident from the Dhal Bachh and the vendees are in self-cultivation possession as is evident from the entry in the Khasra Girdawari for Rabi 1972 which shows %bud Kasht' of Ghulam Yasin and Muhammad Shah and as has been reported by the D.L.C. The transaction is a genuine one."
' In the final order dated 30-3-1973 the learned Chief Land Commissioner found vide para. 5 as follows :- "With regard to issue (ii) above the investigation with regard to the transaction being bona fide as noted in my interim orders dated 27-11-1972 and 20-3-1973 had led to the conclusion that the requirements of Explanation HI of paragraph 7 (1) (h) had been fulfilled in this transaction. I, therefore, decide the issue in favour of the appellant, accept the transaction in respect of Mutation No, 710 as bona fide for purpose of para. 7(1)(b) and set aside the order of the Land Commissioner dated 15-6-1972 whereby he declared the transaction as void."
2. On information of the Head of the Inspection Team, Federal Land Commission, a Member initiated proceedings under paragraph 29 of the M. L. R. 119 and observed as under vide para. 5 :- "Even if the attendant circumstances surrounding the entry and attestation of Mutation No, 710 of Deh Shireen which have been deliberated upon by the learned Chief Land Commissioner at length and which render it suspicious are ignored the fact that consideration paid was less than one- fourth of the going market rate for the land sold in the same Deh during the years the mutation was entered/ attested proves conclusively that all the requirements laid down in Explanation III to para. 7(1)(b) for determining the genuineness of the sale have not been fulfilled."
' So holding, he "set aside the orders of the learned Chief Land Commissioner validating the alienation and uplizld the orders of the Land Commissioner holding the sale as void". This is vide order dated 12-6-1979. This is challenged by the petitioner through the present Constitutional petition.
3. Learned counsel appearing for the petitioner has submitted that the learned Member, Federal Land Commission fell in error to have picked up one of the factors, consideration, for the transaction, ignoring others in annulling the transaction. He relied on Samo and 5 others v. The Officer on Special Duty, Federal Land Commission, Rawalpindi and 4 others (1) and read out a passage at page 1312 of the report which is to the following effect : "The plain reading of the Explanation makes it clear to us that the question of adequate consideration is only one of the factors to be taken into consideration among other matters.
Therefore, the mere fact that the consideration for a transaction may appear to be inadequate cannot be the sole basis for rejecting a transaction as not bona fide and if upon the other considerations mentioned in Explanation III the Commission finds that the transaction is boda fide it will not be under any obligation to reject the same. In this case the other factors taken into consideration by the Land Commissioner were that the transaction was by a registered sale-deed, mutation had been effected before the crucial date and transferee was found to be in effective possession and management of the property and (1). 1981,E L C 1308 was paying land revenue. The learned Officer did not upset the findings on the other considerations which in our view cumulatively fully justified the order passed by the Land Commissioner."
The learned counsel has referred to three other cases to the same effect reported as Mst.
Talawatun Nisa and 2 others v. Officer-on-Special Duty, Land Commission, Karachi and another (1)
Haji Muhammad Umar v. Officer on-Special Duty Federal Land Commission and 3 others (2) and Abdul Rahman and 2 others v. Federal Land Commission and 2 others (3). The learned counsel submitted that the case of the petitioner is on all fours with the afore quoted decisions.
4. The learned Assistant Advocate-General appearing for the respondent Authorities has submitted that although it is true the learned Member, Federal Land Commission has only mentioned consideration for the transaction but he must have kept other factors enumerated in the 'Explam tion. On a question as to what is the basis of the observation in the impugned order that the consideration paid was less than one-fourth of the going market rate, the learned Assistant Advocate-General submitted that none is mentioned.
5. From what has been stated above, it would appear that the learned Member, Federal Land Commission has set at naught the transaction on the ground that the consideration was less than one-fourth of the going rate for the land sold but the order lacks the basis for say.Ng so. Without any basis or reference to any evidence at all, no foundation was laid nor superstructure could be raised for the finding. In any case not only the law provides that four certain considerations shall have to be taken into account in determining the bona fide of a transaction as laid down in Explanation III of para. 7(1)(b) of the Marcia' Law Regulation 115 anclA the learned Member Federal Land Commission has confined his attention to only one but he has also omitted to notice that the learned Chief Land Commissioner has examined the question of bona fide transaction with reference to all the four considerations and has given findings of fact on each of these four factors.
Without application of mind to all the aspects of a case no just decision can be arrived at in accordance with law. The cases quoted by the learned counsel for the petitioner more than fully cover the case of the petitioner. In view of the factual position and the law as laid down in these judgments, there is no doubt that the learned Member, Federal Land Commission erred in law in setting aside the order of the learned Chief Land Commissioner dated 30-3-1973 vide his own order dated 8 12-6-1979. His order is clearly without law full authority and of no legal effect. It is so declared. The order of the learned Chief Land Commissioner dated 30-3-1973 is restored and shall hold the field. In the circum stances, the parties shall bear their own costs.
(1) 1984 CLC 1712 (2) 1984 CLC 1868
(3) 1984 CLC 2586