' There are three revision petitions filed under Land Reforms Rules - against one and the same order dated 27-1-1979, passed by the learned Land. Commissioner, Hyderabad, maintaining the order of the Deputy Land Commissioner who had directed that area of 367-01 acres equal to 12,000 P. I. Us. As shown in Schedule 'A' should be retained by declarant Rashidur Rehman while remaining area of 199-22 acres equivalent to 7647 P. I. Us. As shown in Schedule B' should be resumed from the Khata of declarant.
2. Facts are given in the order of Deputy Land Commissioner dated 1-3-1978 and need not be reproduced in this order. The main point involved in these cases is that the declarant had made certain alienations which were confirmed up to the level of Chief Land Commissioner. Subsequently this case was reopened on suo motu side by Officer on Special Duty and Joint Secretary, Federal Land Commission, who declared certain alienations made by the declarant as void. Consequently.
The land involved in the alienations which were not confirmed, ieverted to the Khata of declarant and the ceiling limit of holding of the declarant thus exceeded. The Deputy Land Commissioner, Sanghar redetermined holding of the declarant and resumed the area 199-22 acres shown in Schedule 'B'. On appeal, the Land Commissioner remanded the case to the Deputy Land Commissioner, who passed fresh order on 1-3-1978. The declarant and the purchasers preferred appeals to the Land Commissioner, who maintained the order of Deputy Land Commissioner.
3. The Advocates for the declarant and the petitioners mainly contended that para. 11(i) of M. L. R.
115 gives right of choice and exchange of area to the declarant and to no one else. Para. 11(i) provides inter alia that if a person owns or possesses area of land exceeding the area permitted under this para. He shall select out of holding the area which he is entitled to retain and in doing so shall as for as possible, select compact blocks of not less than the size of an economic holding.
Therefore, the requirement of Law binding on declarant is that he only selects compact block of not less than an economic holding. There is no other requirement under Law which is to be fulfilled by the declarant while giving his choice. Therefore, the order of the learned Deputy Land Commissioner refusing to accept the choice of the declarant on the ground that he should give preference to those purchasers who had entered into agreement with the declarant during 1962 to 1967, was against law. The Deputy Land Commissioner had no authority under the to overrule the declarant's choice. By overruling the choice and imposing his own choice, the Deputy Land Commissioner had usurped the right of the declarant given to him by law. The Advocates further contended that the argument given by the Deputy Land Commissioner that he exercised judicial mind in giving preference and priority, was not proper appraisal of law. The Commissioner has not properly appreciated law by deciding that the choice given by the declarant was not considered appropriate by the Deputy Land Commissioner. In support of their arguments, the Advocates have quoted ruling of High Court in case of Malik Faqir Hussain and others (1), against Federal Land Commission. The operative part of the judgment reads as under :- "I have taken through the provisions of Land Reforms Rules [M. L. R. 115] of 1972 by the learned counsel for the parties. There is no provision anywhere in the main regulation or in the form of direction or rules and no one has been brought to my notice by the learned counsel for the parties which may have given authority or jurisdiction to the Land Reforms Authotities to insist upon particular type of choice as was involved in this case.
' In that view of the matter, the view taken by the Federal Land Commission on the subject is clearly without consequences upon the petitioner. The result is that the writ petition is accepted. The order passed by the Member, Federal Land Commission dated 12-5-1975 is hereby quashed and the case is remanded to him for fresh decision in accordance with the law."
' The Advocates, therefore, argued that in view of the authority of High Court quoted above, the choice is of the declarant and no Land Commission authority has got power to impose its own choice by overruling the choice of the declarant.
(1) PLD 1976 Lah, 1083 After bearing the arguments and going through law, I am convinced, that para. 1(1) of [M. L. R. 115] is very clear which gives right of choice to the declarant and to no one else. The only condition is that the declarant has to select the land in such a way that he selects compact blocks of not less than the size of economic holding. There is no other condition under law which the declarant is required to fulfil at the time of giving choice. I am, therefore, convinced that the learned Deputy Land Commissioner had exceeded his powers by delegating to himself the right of choice which belonged to the petitioner.
1. Therefore, set aside the orders of both the lower Courts with the direction that the choice already given by the petitioner (declarant) may be accepted subject to the condition that the land that was sold by declarant to Najam-un-Nissa and is under litigation with High Court which has been excluded from choice by the Deputy Land Commissioner on that ground should remain excluded.
Besides 12 acres of land which have been purchased by Imam Bux as Government land and which have been excluded from the holding of the declarant should remain excluded. My attention has been drawn to an ex parte decree by the civil Court in respect of 51-31 acres which was excluded by Deputy Land Commissioner in his order dated 7-12-1976. That position should also not be disturbed as there is a civil Court decree. Land Utilization Department may, however, see if appeal can be filed to higher Court.
' This also disposes of revision petitions filed by Bachal and others and Ali Jan.
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