' RUSTAM S. SIDHWA, J.---This is an appeal by Sultan Azam Shah and others, appellants, against the judgment of the Lahore High Court, Multan Bench, Multan, dated 16-11-1987, dismissing their writ petition.
2. The brief facts of the case are as follows:-- ' Sultan Azam Shah and others, appellants Nos. 1 to 10, are the legal heirs of Syed Noor Ahmad Shah, who owned 680 kanals 4 marlas of land situated in Mauza Khanewal Kuhna, Tehsil Kabirwala, District Khanewal. Out of this land he sold 280 kanals from time to time through different mutations to different persons and thus was left with 400 kanals 4 marlas of land in the beginning of 1980, which was 4 marlas above the economic holding as defined in Martial Law Regulation No,
115. Out of the said land Noor Ahmad Shah deceased through Mutation No, 91 sanctioned on 30-1-1980 gifted land measuring 10 kanals 2 marlas to Sultan Azam Shah and others, appellants 1 to 6, his five sons and widow, which had the result of reducing his holding to less than the economic holding.
Thereafter, through Mutation No, 105 sanctioned on 8-3-1980 he sold an area of 8 kanals to respondent No, 4 and he further sold land measuring 40 kanals to respondents Nos. 6 and 7 for which Mutation No, 106 was sanctioned on the same day i.e, 8-3-1980 and he further sold an area of 60 kanals to respondent No,5 through Mutation No, 135 sanctioned on 28-11-1980. On 13-3-1982 Noor Ahmad Shah deceased made an application before the District Collector that the said Mutations Nos. 105, 106 and 135 were void, being violative of provisions of MLR. 115, as he could not alienate any part of his land which had the effect of reducing his holding below economic holding.
This application was dismissed by the District Collector by his order dated 18-11-1982. Noor Ahmad Shah deceased did not take the matter any further and kept silent, as he filed no further appeal or revision before the higher forums. Subsequently at the start of consolidation operations in the village, the Additional Deputy Commissioner (Cons.), in exercise of his suo motu powers of review, passed an order on 28-1-1984 for review of the said Mutations Nos. 105, 106 and 135, treating them as void and the field staff was directed to incorporate the same in the Revenue Record.
Respondents Nos. 4 to 7, being the transferees of the land, feeling aggrieved, filed an appeal before the Additional Commissioner (Rev.) on 14-2-1984 against the said order. During the pendency of this appeal Noor Ahmad Shah died on 16-9-1984; therefore, his legal representatives became parties to the case. The learned Additional Commissioner, by order dated 29-1-1985, accepted the appeal and remanded the case to the Collector, Multan, to decide the same afresh, holding that the impugned order was passed behind the back of respondents Nos.4 to 7 without any notice to them and a direction was also given to consider the effect of Noor Ahmad Shah having filed no appeal against the order dated 18-11-1982 passed by the District Collector, on his application as noted above. After the remand of the case, the Collector, by order dated 29-12-1985, refused to review the said Mutations, against which order the appellants filed an appeal before the Additional Commissioner (Revenue) which was dismissed on 17-3-1986. The appellants' revision against the said order before the learned Member, Board of Revenue, was also dismissed on 26-4-1986. The appellants challenged these orders in Writ Petition No, 865-A of 1986, which was also dismissed.
The learned Single Judge held that alienation by way of gift of land for the purpose of erecting a building was not hit by para. 24 of Martial Law Regulation 115 and if through the said gift the economic holding stood reduced to a subsistence holding, the further sales of land did not violate para.
24. The learned Single Judge did not accept the appellants' proposition that transfers to be valid under para. 24(6)(a) had to be for the benefit of the alienors. Being aggrieved by this judgment, the appellants have now come up in appeal.
3. Leave to appeal was granted in this case as a question of law of public importance arose regarding the interpretation and operation of para. 24 of the Martial Law Regulation No, 115.
4. On behalf of the appellants it is submitted that initially when para. 24(6)(a) was enacted, the restriction on alienation was not applicable if the land was bona tide required by the owner for the purposes of building thereon, which provision was interpreted in Muhammad Din v. Deputy Commissioner PLD 1976 Lah. 1367 to cover a transaction where land was being sold by an alienor to an alienee who was already owner in the village and required that land bona fide for building purposes, and since the words "by the owner" were dropped by the amendment of 1976, it is stated that the intention of the legislative draughtsman was to exclude the alienee from the benefit of the said provision. In short it is submitted that words of clause (a) of sub-para. (6) of para. 24 imply that where the transaction covers land which is being sold by an alienor to a person who is already owner in the village the bona fide requirement must be of the alienor in respect of the land being transferred by him for building purposes and not that of the alienee. Since Mutation No, 91 dated 30-1-1980 relating to the gift made by Noor Ahmad Shah to his widow and five sons gifting 10 kanals 2 marlas of land by way of tamliq sani was a transaction for the benefit of the dunces, it was not saved and the gift was void and all the subsequent sales were also void. It is submitted that the object of the amendment in clause (a) of subpara. (6) of para. 24 was to ensure that the bona fide requirement for the purpose of constructing a building on the alienated land was to be for the benefit of the alienor and not the alienee.
5. On behalf of respondents Nos. 4 to 7 it is submitted that the judgment of the learned Single Judge of the Lahore High Court correctly interprets para. 24(6)(a) of Martial Law Regulation No, 115, which should be sustained, as any other interpretation would lead to absurdity. It is, therefore, prayed that the appeal should be dismissed and that the sum of Rs, 95,0(X) furnished by the appellants as bank guarantee to cover the mesne profits for the period from 1980 onwards should by ordered to be paid to the respondents, as by now the appellants owe more than Rs, 2 lacs in respect of mesnc profits, as the lands transferred to the respondents are valuable.
6. Basically the interpretation of clause (a) of sub-para. (6) of para. 24 of Martial Law Regulation No, 115 arises in this case. The relevant provisions of para. 24, as originally enacted, were as follows:- - "24. Restriction on alienation of holdings.---(1) No person owning more than the area of an economic holdings shall be allowed to alienate by sale, mortgage, gift or otherwise any portion of his holding which may reduce the size of his holding to an area below the limit of an economic holding: ' Provided that such a person may alienate his entire holding.
(2) No person owning an economic holding should be allowed to alienate by sale, mortgage,gift or otherwise any portion of his holding: ' Provided that such a person may alienate his entire holding.
(3) No person owning more than the area of a subsistence holding but less than an economic holding shall be allowed to alienate by sale, mortgage, gift or otherwise any portion of his holdings which may reduce the size of his holding to an area less than the area of subsistence holding: ' Provided that such a person may alienate his entire holding.
(4) No person owning an area equal to less than a subsistence holding shall be allowed to alienate by sale, mortgage, gift or otherwise any part of his holding: ' Provided that he may alienate his entire holding or, in the case of a holding which is less than a subsistence holding sell any part of his holding to other owners of the same village, Dch or Mauza.
(5) Any alienation made in contravention of the provisions of this paragraph shall be void.
(6) Nothing in this paragraph shall apply to land, whether cultivable or other, which is bona fide required by owner for the purpose of building thereon, and any tenant in possession of such land who refuses to quit after notice may be evicted under the orders of the Deputy Commissioner."
' In July, 1976 by the Land Reforms (Amendment) Act, XLVIII of 1976, sub-para. (6) of para. 24 of the Martial Law Regulation was substituted, which contained five clauses. The new substituted clause
(a) was as follows:-- "(6) Nothing in this paragraph shall apply to:--
(a) land, whether cultivable or other, which is bona fide required for the purpose of building thereon, and any tenant in possession of such land who refuses to quit after notice may be evicted under the orders of the Deputy Commissioner."
' Later in April, 1982 by the Land Reforms Regulation Punjab (Amendment) Ordinance, V of 1982, the aforesaid sub-pare. (6) of para. 24 of the said Martial Law Regulation was again substituted, but clause (a) thereof did not suffer any change. What requires interpretation, therefore, are the words:-- "(6) Nothing in this paragraph shall apply to:--
(a) land, whether cultivable or other, which is bona fide required for the purpose of building thereon, and any tenant in possession of such land who refuses to quit after notice may be evicted under the orders of the Deputy Commissioner."
7. Muhammad Din's case (supra), in interpreting the previous clause (a) of ,ub-para. (6) of para. 24, clearly held that this clause referred to a transaction where land was being sold by an alienor to a person who was already owner in the 'illage and who required the land bona fide for building purposes. The effect of emoval of the words "by the owner" in 1976 does not have the effect of altering he interpretation, but rather to sustain it, so as to cover transactions where land being sold by an alienor to any person who requires that land bona fide for building purposes. The object of the amendment in the law was not to make the bona tide requirement applicable to the alienor; rather, it was to clarify the position and to sustain the interpretation of the High Court and to make it clear I that the bona fide requirement was relatable to the needs of the alienee. The similar view expressed by the learned Single Judge of the Lahore High Court is, therefore, correct. If the interpretation, as suggested by the learned counsel for the appellants, is accepted it would lead to absurd results. In these circumstances, the judgment of the Lahore High Court appears to be legal and in order and does not call for any revision.
8. With regard to the prayer of the learned counsel for the respondent that the bank which has furnished the bank guarantee in the sum of Rs, 95,000, should be asked to make the said payment to the respondents, the learned counsel for the appellants has no reply. This Court ordered the appellants to furnish the bank guarantee by way of security for the mesne profits that would become due and payable to the respondents for the illegal user of their lands from 1980 onwards, in case their appeal failed. If the actual mesne profits are ordered to be worked out, it would far exceed Rupees two lacs, as the lands sold by Syed Noor Ahmad Shah were valuable lands. Taking all circumstances into consideration, we would order that the bank which has furnished the bank guarantee in the sum of Rupees ninety-five thousand (Rs, 95,000) should be called upon to deposit the said sum in this Court, which should then be paid to Muhammad Ghause, Muhammad Afzal, Ghulam Rasool and Ghulam Nabi, respondents Nos. 4 to 7, personally on their proper identification, in the presence of the Registrar of this Court.