MUNIR A. SHEIKH, J.---In this Constitutional petition, order dated 31--8-1976 passed by Mamber, Federal Land Commission in exercise of suo motu powers under section 29 of Land Reforms Regulation 115 of 1972, has been challenged.
2. The facts giving rise to this writ petition are that respondent No.3 who was the original owner of the land in dispute transferred it to respondent No.2 who is his son through Mutation No. 83 sanctioned on 27-4-1970. The respondent No.2 further gifted the same to his son, the petitioner through mutation No. 141 dated 28-6-1971.
3. On the promulgation of Martial Law Regulation No. 115 of 1972 mutation of gift No. 141 in favour of the petitioner was taken up for scrutiny by Mr. Maqbool Ahmad Sheikh, Member, Federal Land Commission and the same was upheld through order dated 31-8-1976. However, the matter of examination of transfer of land through Mutation No. 83 by way of sale from respondent No.3 to respondent No.2 was taken up by Mr. I.U. Khan the other member of Federal Land Commission and the same was held to be not bona fide through order dated 31-8-1976 impugned in this writ petition. The Member, Board of Revenue while recording this finding was mainly influenced by the fact that instead of transferring the land to the petitioner who is grandson of respondent No.3, the original owner, first transferred it to respondent No.2 his son who further gifted it to the petitioner which was a device to evade the provisions of Martial Law Regulation No. 115.
4. Learned counsel for the petitioner argued that the Member, Federal Land Commission proceeded to examine the case on the erroneous assumption that under para 7 (1) (b) the transfer of land through Mutation No. 83 to respondent No.2 was void unless it was found to be bona fide whereas according to him this transaction was covered by clause (i) of proviso to clause (b) of para.7(1).
5.The argument has considerable force. It is manifest from the bare reading of para 7 as a whole that any transfer of land etc. Made by a person in favour of heirs was excluded from the purview of the proviso as also clause (b). Therefore, any transfer by a person in favour of his heirs under the law, could not be questioned or treated to be void under the said provisions of law. This view finds support from judgment reported as Sardar Abdul Ghafoor Khan and 3 others v. The Federal Land Commission, Islamabad (PLD 1979 Lahore 375) in which it has been held that the expression" creation of any right or interest in or encumbrance" used in clause (i) to this proviso does not restrict the applicability of this provision to a transaction of gift as mentioned in it. Even otherwise, there was no material before the Member, Board of Revenue to arrive at that conclusion. The sale of land by respondent No.3 in favour of respondent No.2 took place on 27-4-1970 as is evident from Mutation No.83. The gift was made in four of the petitioner by respondent No.2 on 28-6-1971 as is clear from Mutation No.141 i.e. After a lapse of more than one year. The target date fixed in Martial Law Regulation No. 115 is 22-12-1971. In these circumstances, there was no reason to doubt genuineness and bona fides of the transaction since no person could visualise that Land Reforms Laws would be enforced.
6, For the foregoing reasons, the proceedings taken by Member, Board of Revenue: for examining the transaction of sale through Mutation No. 83 from respondent No.3 to respondent No.2 in exercise of sao motu power under para 29 of the Martial Law Regulation No. 115 and the impugned order dated 31-8-1976 passed in consequence thereof are illegal. The writ petition is accepted with no order as to costs. The proceedings taken and order passed on 31-8-1976 under para 29 of the Martial Law Regulation No. 115 are hereby declared to have been taken and passed as without lawful authority and are quashed.
A.A./M-2064/L Petition acceped.