' This is a revision petition against the order of Chief Land Commissioner, N.-W.F.P., Peshawar, dated 4-7-1985 dismissing the petitioners' revision petition against orders of Land Commissioner, D.1.
Khan, dated 30-3-1983. The Land Commissioner's order had upheld the order of the Deputy Land Commissioner, D.I. Khan, dated 27-12-1982 allowing Mst. Ghulam Sakina Bibi, respondent No. 4, to interchange land measuring 145 Kanals 8 Marlas out of the excess land surrendered by her with land measuring 55 Kanals 15 Marlas belonging to her daughter Mst. Shabnum and to interchange land measuring 696 Kanals 11 Marlas out of land retained by her with land measuring 541 Kanals 19 Marlas out of land surrendered by her son Hafizullah Khan and resumed by Government vide order, dated 14-10-1979 by way of fresh choice. As a result of the Deputy Land Commissioner's order the petitioners who had been granted the area in question under section 15 of Land Reforms Act 1977 were dispossessed of their land without having been given an opportunity of being heard.
2. Counsel for the petitioners and respondent No. 4 were heard and record of the lower Courts was examined. Land measuring 143 Kanais 4 Marlas comprised in Khasra No. 378 in village Potah, Tehsil and District D.I. Khan was jointly held by Mst. Ghulam Sakina Bibi and 9 others including her sons and daughters and other close relatives. The land was resumed into the Government's resumption pool vide Deputy Land Commissioner D.1. Khan's order, dated 14-10-1979 in the case of declaration filed by Hafizullah Khan son of Mst. Ghulam Sakina Bibi and one of the 10 joint owners of Khasra No. 378, as Hafizullah Khan in exercise of his choice under section 4 of the Act had surrendered the entire Khasra number. The entire joint holding of Hafizullah was partitioned under Land Reforms Act, 1977, vide A.L.C., D.I. Khan's order, dated 20-12-1981 as a result of which Mutation No. 289, dated 15-4- 1982 was sanctioned under which the entire land comprised in Khasra No. 378 came into the Government's resumption pool. The land was then granted by the D.L.C. D.I. Khan vide his order, dated 31-12-1981 to the present petitioners as sitting tenants under section 15 of the Land Reforms Act, 1977 and Mutation No. 295 was attested in favour of the petitioners, on 9-6-1982. Later Mst.
Ghulam Sakina Bibi moved applications on 20-11-1982 before the Deputy Land Commissioner praying for permission to interchange some of her land with the land of her daughter Mst.
Shabnum alias Sweety Bibi and her son Hafizullah Khan under section 4 of the Land Reforms Act, 1977. At about the same time the D.L.C. Was also directed by the Land Commission in exercise of its suo motu revisions] powers to redetermine the holding of Mst. Ghulam Sakina Bibi as scrutiny of her case had disclosed that she had been asked to surrender land equivalent to 103 P.I.Us. More than what should have been done. The Deputy Land Commissioner passed an order, on 27-12-1982 redetermining the holding of Mst. Ghulam Sakina Bibi as 801-1-8 Acres equivalent to 10301 P.I.Us. As against the original determination of 10404 P.1.Us. By the same order he also allowed the respondent to interchange land in excess of the ceiling, measuring 145 Kanals 8 Marlas with land measuring 55 Kanals 15 Marlas from the holding of her daughter Shabnum and to interchange from the area retained by respondent Mst. Ghulam Sakina Bibi, land measuring 696 Kanals 11 Marlas equal to 1173 P.I.Us. With land measuring 541 Kanals 19 Marlas equal to 1173 P.1. Us. From the holding of her son, Hafizullah Khan which had been resumed by the Government, vide D.L.C., D.I.
Khan's order, dated 14-10-1979. The petitioners appealed against this order before Land Commissioner who dismissed the appeal vide his order, dated 30-3-1983. The petitioners' revision against the said order of the Land Commissioner was also dismissed by the Chief Land Commissioner vide his order, dated 4-7-1985, against which the present petition has been filed.
3, The counsel for the petitioners in his arguments contended that the area allowed to be interchanged by the Deputy Land Commissioner in his impugned order under section 4 of the Land Reforms Act, 1977 is not covered by section 4(2) as such an interchange can be allowed only of land owned or possessed within the same district by any member of the declarant's family e.g. Husband, wife, sons and daughters whereas in the present case, at the time of D.L.C's. Order, the area in question had ceased to be owned or possessed by any member of the respondent's family since it had become the ownership of the petitioners vide Deputy Land Commissioner's order, dated 31-12-1981 on the basis of which Mutation No. 295 was sanctioned on 9-6-1982. The area in question, therefore, was not owned or possessed by members of Mst. Ghulam Sakina Bibi's family which could have been interchanged under section 4(2) of the Land Reforms Act, 1977. The counsel further argued that since the petitioners had acquired valuable legal rights in the land they should have been heard and made party to the case before the impugned order was passed by the Deputy Land Commissioner which was not done and they have been deprived of their valuable rights without having been heard. Secondly the counsel argued that in any case the interchange applied for by the respondent and allowed by the D.L.C. Under the impugned order could not have been allowed as the Government had fixed under section 7 of the Land Reforms Act, 1977, 25th May, 1977 as the last date before which applications for interchange under section 4(2) of the Act could be made whereas the application in question was made by the respondent Ghulam Sakina Bibi, on 20-11-1982. The impugned order was, therefore, patently against law since it entertained an application for interchange long after the date notified by the Government for the purpose.
4. Counsel for the respondent contended that the partition of the joint holding of Mst. Ghulam Sakina Bibi and 9 others vide order on 20-12-1981 of Assistant Land Commissioner had been done without notice to the respondent and, therefore, was not legal. He also argued that the case, once having been remanded by the Land Commissioner vide his order, dated 22-9-1982, the entire matter of determination of holding, exercise of choice etc. Was reopened and the D.L.C's order, dated 27-12-1982 was, therefore, competent.
5. After hearing both the sides and examining the orders of the lower formations, I find that the order of D.L.C., dated 27-12-1982 was wrong on several accounts. While dealing with the directions given to him in exercise of its suo motu jurisdiction by the Provincial Land Commission he should have confined himself to redetermining Mst. Ghulam Sakina's holding and asking her for fresh choice in respect of only 103 P.I.Us. Which were additionally determined as part of her holding. There was no warrant for his re-opening the entire question of the original choice made by the respondent relating to the area retained by her and that surrendered by her for resumption. In any case he was totally wrong in his giving the land to the respondent which had been legally granted under section 15 to the petitioners without giving them even a semblance of a hearing. The D.L.C.
Was also wrong in entertaining applications for interchange of the land filed by the respondent under section 4(2) of Land Reforms Act, 1977, long after the date notified by the Government, vide N.-W.F.P. Government's Notification No. 2878/IC/ LR-77, dated 20-5-1977. Apart from the fact that the application for such an interchange was not allowed by law, the interchange allowed by the D.L.C. Is also not covered by the ,provisions of section 4(2), since part of the land allowed to be interchanged was not owned by any member of the respondent's family as it had been granted to the petitioners and also because under section 4(2) an applicant can only apply for interchange of land which he is required to surrender under the Act whereas in the present case the applicant had applied for, and was allowed by the D.L.C. To interchange, even the land which had been retained by her under section 4. Orders of the Land Commissioner, dated 30-3-1983 and Chief Land Commissioner, dated 4-7-1985 dismissing the petitioner's appeal and revision respectively also cannot be sustained as the two forums in question have not even bothered to go into any of the points discussed in the preceding paragraphs. These orders unfortunately have been passed in a most perfunctory manner without application of mind to the circumstances of the case.
6. For reasons discussed in the preceding paragraphs the D.L.C's order, dated 27-12-1982, Land Commissioner's order, dated 30-3-1983 and Chief Land Commissioner's order, dated 4-7-1985 are hereby set aside as being of no legal effect. The case is remanded to the Deputy Land Commissioner concerned for redetermining the holding of the respondent, Mst. Ghulam Sakina Bibi, in the light of this order. Such determination should be confined only to adding the land equivalent to 103 P.I.Us. To her holding and she should be allowed choice only out of the area which was earlier resumed from her vide original order, dated 21-12-1979.