1. ' IBADAT YAR KHAN, J.--The miseries of the petitioner start from 30th December, 1976 when the first adverse order against him came to be passed by the Federal Land Commission upsetting the settled entitlement of land in his favour by order, dated 7th September, 1972 passed by the Deputy Land Settlement Commissioner, Hyderabad on the declaration filed by the petitioner No,2 under Martial Law Regulation 115.
2. ' This is the third constitutional petition in a row. The two previous petitions filed by the petitioner in more or less similar situation were allowed by this Court by orders, dated 26-3-1978 and 15-5-1984 and each time the case was remanded to the Federal Land Commission for a proper scrutiny and appreciations of the pleas raised by the petitioner. This is the third petition as stated above.
3. ' The petitioner No,1 is the son of petitioner No,2, who was sometime Chief Secretary of the Government of Baluchistan and has now retired. The petitioner No,2 held some agricultural lands in his name. Petitioner No,1 also acquired some land measuring 417 Acres, or there about situated in Deh Lun Khan, Badin Sind sometime in 1962 when he was a minor. It is the ownership of this land which is causing the trouble to the family and has brought the two petitioners to the High Court now for the third time.
4. ' In 1972 Martial Law Regulation No,115 was promulgated and land reforms were introduced. Under this regulation the Government servants were required to make a declaration of the lands they were holding. It may be clarified that the limit of 100 Acres was related only to such land which the declarant had acquired as such Government servant between the period 1-1-1959 till after 2 years of his retirement. The land devolving on the declarant by inheritance or othewise was excluded from this area. For ready reference para. 10 of Martial Law Regulation 115 may be reproduced because it is the interpretation placed on this para. Which is causing the confusion in the minds of the Land Commission. Para. 10 of M.L.R. 115 runs as under:- "Para. 10.--Acquisition of land by Government servant:-
(1) No person who is or has been in the civil service of Pakistan and has at any time between the 1st January, 1959, and two years of his ceasing to be in civil service, acquired any land or any right or interest therein, by any means whatever either in his own name or in the name of any of his heirs or any other person, shall own or possess any land exceeding one hundred acres: ' Provided that, subject to the other provisions of this Regulation, any such person may, in addition to one hundred Acres of land, own or possess any land which has devolved on him by inheritance or any other land, no exceeding the area of land so inherited, which has been acquired by him in lieu of that land no inherited whether by exchange or sale, either in his own name, or in the name of any other person."
5. ' In pursuance of the above the petitioner No,2 filed his declaration. It came to be examined and scrutinized by the Deputy Land Commissioner, Hyderabad. The disputed area of 417 Acres was shown to be the property of the minor son, petitioner No,1 and the source of its purchase was shown to be independent from the petitioner No,2. Evidence was led to show that these 417 Acres were acquired by the petitioner No,1 though the money which was gifted to him by his maternal grandfather Moulana Mohiuddin Qasoori as early as 1961 and which was lying in trust with his maternal-uncle Mr. Suleman Qasoori since then. That on 10-8-1972 the petitioner No,2 received a sum of Rs,10,000 through a cheque drawn on National Bank Lahore from Mr. Suleman Qasoori and it was this amount which was utilised for the purchase of the land in question in Badin. Two affidavits were filed in support of this assertion and some documents from the Bank were also produced to show that disbursement of the amount from Lahore to petitioner No,2 and onward to the brother of petitioner No,2 who made an advance payment of Rs,10,000 for the purchase of this land. On the basis of this evidence the declaration of petitioner No,2 was accepted and by an order, dated 7-9- 1972 the Deputy Land Commissioner,. Hyderabad recorded a categorical finding in favour of petitioner No,1 in the following para. Of his order:- "From the above explained position, I find that the land of 417-30 Acres held by the son of declarant has not been acquired from the resources of declarant, hence it does not come within the purview of para. 10 of M.L.R.
6. 115."
7. ' The matter rested at that and there was no problem till the Federal Land Commission re-opened the case by their order, dated 30th December, 1976 and set aside the order of the Deputy Land Commissioner, dated 7th September, 1972. The petitioner filed a Constitutional Petition No, 643 of 1977 in the High Court complaining against this order and the High Court by their, dated 26-3-1978 remanded the case to the Director, Federal Land Commission with the directions that the source of purchase money of this land should be investigated in order to determine whether the case of the petitioner fell within the campus of pars 10 of the M.L.R. The Federal Land Commission, without any notice or intimation to the petitioner again passed an order on 21-7-1981 on the basis of the report of the Land Commission Inspection Team and came to the conclusion that the land in question was purchased by the petitioner No,2 in the name of petitioner No,1. This decision was again challenged by another petition being Constitutional, Petition No, 1092 of 1981 filed in the High Court.
8. This petition was also allowed by the High Court by a Judgment, dated 15-5-1984 and the case was remanded to the Federal Land Commission for disposal after giving full hearing to the petitioner.
9. It is regretted that again for the third time the learned Member of the Federal Land Commission who passed this Order has committed the same error as was committed by his two learned predecessors. In this order the fate of the petitioner has been left to speculation and surmises and no efforts have been made to apply intellectual approach for entitlement of the petitioner on the proper construction of para. 1 of the M.L.R.
115. The last para. Of the order in which conclusion has been drawn against the petitioner by the learned Member of the Federal Land Commission may be quoted to show the line of approach of the learned Member in this case. It runs as follows:- "The respondent's son was about 9 years old when this land was brought in his name. The money was paid by cheque, by the Government servant and passed on to his brother Raja Allah Dad, who was then buying lands on behalf of himself and other family members in Badin. The purchase of the land was obviously not a 'Banami' transaction. It was a clear cut case of acquisition of property by a Government servant in the name of his son, who being minor could not think of or was in a position to enter into such transactions. The source from which money came, or the amount of the money spent, or not spent, over the land, or its state of development are not relevant to the essence of the matter. What is relevant is the acquisition of land beyond the prescribed ceiling of 100 Acres, by the Government servant or his family members or even by way of 'Benami' transaction. Thus, this case clearly falls within the mischief of pare, 10 of the Land Reforms Regulation, 1972. This land shall be treated as the property of respondent Raja Ahmed Khan "and included in his holding".
10. It is evident from the above that in total disregard to th directions of the High Court in the first order wherein a direction was given to the authority to trace the source from which the purchas money for this land came, the learned Member proceeds to hold "th source from which money came, or the amount of the money spent, o not spent, over the land, or its state of development are not relevant to the acquisition of land beyond the prescribed ceiling of 100 Acres, by the Government servant or his family members or even by way o 'Benami' transaction."
11. ' It appears to us that the learned Officer has not full comprehended the concept of a 'Benami' transaction. In one breath h says "the purchase of the land was obviously not a 'Benami' transaction" and still he does not hesitate to hold that the land registered in the name of petitioner No,1 in all the records and also purchased in hi name is not owned by him and is owned by the petitioner No,2. TM approach of the learned Officer is irreconcilable and contradiction in terms.
12. ' We are unable to agree with the view that the source for which the purchase was finalized is irrelevant to the essence of the matter. There can be no two opinions on the point that if the land has been purchased with the money which was lying in trust for the benefit of the petitioner No,1 since 1961 when the family settlement took place and the purchase has been made with this money as alleged by the petitioners than the land will not be hit by the Martial Law Regulation. The categorical findings in the order of the learned Deputy Land Commissioner which are based on evidence produced before him, have neither been upset nor even discussed, and there is nothing in the order to show that the story of purchase advanced by the petitioner and believed by the competent authority in the order, dated 7-9-1972 is not trustworthy or is not reliable. As such the order, dated 7-9-1972 remains intact. The findings of the learned Member that the source from which the money came is irrelevant are clearly erroneous. As stated above if the purchase of this land was not financed through the sources or earnings of the petitioner No,2 and the land has been acquired by the petitioner No,1 through sources other than those traceable to the petitioner No,2, the land cannot be treated as land belonging to petitioner No,2. By now this has been judicially recognized in a number of cases and mention may be made of following cases in which this view has been taken:-
(1) 1980 CLC 1358: - ' In this case para.10 of M.L.R. Was examined and it was held that "the language of para. 10 makes it abundantly clear that the said provision is attracted in case of land held by the heirs of a person in the civil service of Pakistan provided the same was acquired by such person in the name of his heirs or for that matter in the name of any other person. The intention of the law-maker was clearly to extend the restrictions contained in para. 10 to be 'Benami' transactions of acquisition of land by a Government servant."
13. In the present case there is nothing to contradict that source of money for the purchase was the maternal-grandfather of the petitioner No,1 and this money which was gifted to petitioner No,1 and was owned by him was merely routed through the petitioner No,2 to be paid to the seller.
(2) 1981 C L- C 227: ' The other case nearer to the situation on hand is Ch. Ghulam Rasool and 2 others v. Deputy Land Commissioner, Dera Ghazi Khan and 3 others 1981 CLC 227. Para. 8 of the report is as follows:- "Para. 8.--A perusal of the above does clearly show that the acquisition should be by a declarant though it may stand in the name of his sons. Consequently, the finding had to be given by the respondent authorities that it was in fact an acquisition by the petitioner No,1 though the sale was shown in the name of Ghulam Ahmad, who subsequently gifted it to petitioners 2 and 3.
14. ' As there is no such finding and as even the purchase was made about 5 years before the target date, we are not in a position to maintain the impugned orders. They are, therefore, declared to be without any lawful authority and of no legal effect."
15. ' The above case came to be examined by the Supreme Court in appeal filed by the Deputy Land Commissioner, Dera Ghazi Khan. After narrating the dispute it was held as follows: 1983 SC MR 826.
16. "Before the High Court, the contention was that the land in dispute was purchased in October, 1954, and could not be a subject-matter of scrutiny under para. 10 as the target date therein was the 1st of January, 1959. It was further submitted that there was no finding by any of the lower authorities that respondent No,1 had purchased the land in dispute in the year 1954 Benami in the name of Ghulam Ahmad or for his sons respondents Nos. 2 and 3 The learned Judges of the Lahore High Court after reproducing the provisions of para. 10 of the Regulation observed that the terms thereof show that the acquisition should be by a declarant though it may stand in the name of his sons.
17. Consequently, the finding had to be given by the Land Commission authorities that it was, in fact, an acquisition by respondent No,1 though the sale was shown in the name of Ghulam Ahmad, who subsequently gifted it to respondents Nos. 2 and 3.
18. ' As there was no such finding and even the purchase was made about five years before the target, date 1-1-1959, the impugned orders could not be sustained. They were, accordingly, declared to be without lawful authority and of no legal effect."
19. The upshot of the above discussion is that the order, dated -9-1972 survives and the order, dated 30th December, 1984 passed by respondent No,1 is held to have been passed without any lawful authority and is of no legal effect. The petition succeeds and is allowed with oats.