' FAZAL ELAHI KHAN, C.J.--Facts giving rise to this writ petition briefly stated are that petitioner joined Indian Imperial Police Service in 1940 as Assistant Superintendent of Police, who by dint of his service rose to the rank of Inspector-General of Police, West Pakistan, in 1963. After completion of his full tenure as an Inspector-General he was given two years' extension which the petitioner declined, however, he was appointed as Chairman of the West Pakistan Road Transport Corporation. On transfer of power to Agha Muhammad Yahya Khan among other Martial Law Regulations, Martial Law Regulations 58-59 were promulgated relating to Improper Acquisition of Property (Special Committee) Ordinance IX of 1969 with particulars of income during the period.
The directive was complied with and statements of assets and income were duly submitted to the Special Committee headed by Rtd. Mr. Justice Masud Ahmad.
2. That the petitioner was a declarant under Land Reforms Regulation. He, therefore, submitted his L.R. IV Form. According to the petitioner he inherited land from his late father ex-Judicial Commissioner, N.-W.F.P. And produced a certificate of the District Authorities, Lyallpur before the Deputy Land Commissioner, D.I. Khan. He also sold part of his land to unrelated persons vide Mutations Nos. 134, 142 and 172 and these were also produced for perusal. The total income from the sale of land measuring 353 Kanals 17 Marlas was Rs,1,15,755, however, he was left with an area measuring one Kanal in District Lyallpur.
3. Petitioner acquired landed property during the period in question as follows:- "(a) Village Diwan Sahib Wala 821 Kanals and 1 Marla vide Mutation No, 256, dated 29-3-1963;
(b) Village Shore Kat:
(i) Mutation No, 1691 attested on 6-2-1952, 100 Kanals 0 Marla.
(ii) Mutation No, 1723 attested on 19-7-1965, 105 Kanals 11 Marlas.
(iii) Mutation No,1811 attested on 14-5-62, 40 Kanals and 14 Marlas.
(c) Muqeem Shah, Mutation No, 747 attested on 23-10-70, 222 Kanals and 19 Marlas.
(d) In Peshawar District Area--1,274 Kanals 18 Marlas.
' Thus the total area acquired by the declarant comes to 2,574 Kanals 7 Marlas.
' Out of the land purchased the petitioner made the following alienations.-- "Village Diwan Sahib Wala, District D.I. Khan:--
(a) Gift to wife vide Mutation No, 6 attested on 26-7-64, 821 Kanals and 1 Marla.
(b) District Peshawar--659 Kanals and 18 Marlas, vide Mutation No, 1983 on 14-12-1966, No, 2166 attested on 24-3-1971 and Mutation No, 2196 attested on 24-7-1971.
(c) Out of the area gifted to his wife an area measuring 340 Kanals and 6 Marlas in village Diwan Sahib Wala have been sold to unrelated persons vide Mutation No, 41, on which he learnt has been recorded on 20-1-1971 but it has not been attested so far.
' The declarant wife at the time of her marriage in the year 1944 received landed property and a house in District Peshawar througn registered deed and on the death of her father, late Sir Qazi Mir Ahmad 1/8th share in a house which she sold for Rs, 18,000 and Rs,3,000. Petitioner's wife had taken a loan of Rs,95,300 from Industrial Urban Cooperative Bank Ltd., Karachi which rights the Bank sold to the National Commercial Bank Ltd. The Bank went into liquidation and served the petitioner's wife with a notice for payment of the loan and also instituted a civil suit. Similarly the petitioner's wife owned a house in Islamabad and had received an amount of Rs,72,000 as advance rent for two years from the Government of Pakistan. This was to show that the petitioner's wife namely Mst.
Mumlikat Sultan had her independent source to purchase the land recorded in her name. She, therefore, purchased the following properties:-- "(a) Village Haji Mora, vide Mutation No, 737 attested on 26-3-65 area 83 Kanals and 14 Marlas (decreased by 11 Kanals and 6 Marlas in the present settlement and thus she is left with 72 Kanals and 8 Marlas).
(b) Village Muqeem Shah vide Mutation No, 699 attested on 11-5-66, area measuring 1,015 Kanals and 15 Marlas.
(c) Village Girsar vide Mutation No, 66 attested on 30-7-66, area measuring 4 Kanals and 18 Marlas, Mutation No, 67 attested on 30-7-66 area measuring 1 Kanal and 5 Marlas and Mutation No, 74 attested on 16-2-67 area measuring 161 Kanals and 19 Marlas.
(d) In District Peshawar an area measuring 231 Kanals and 17 Marlas.
' Accordingly at the time of submission of declaration petitioner owned total area measuring 1,094 Kanals 8 Marlas in Peshawar and Lyallpur Districts while his wife owned land measuring 568 Kanals 3 Marlas in D.I. Khan and Peshawar Districts. Out of the land he had gifted 480 Kanals 15 Marlas in village Diwan Sahib Wala which the petitioner had acquired, gifted to his wife while the remaining 67 Kanals 8 Marlas was acquired by her through her own source.
4. The petitioner's daughter owned a total area measuring 1,223 Kanals 17 Marlas in D.I. Khan gifted to her by her mother vide Mutation No, 755 dated 5-6-1971 in village Muqeem Shah and through Mutation No, 317 dated 10-5-1971 in village Girsar. This property was acquired by his wife from her own source. Petitioner also owned a tractor and a tube-well for which form L.B. Was submitted under instructions dated 27-6-1972 of the Land Commission, N.-W.F.P. Empowering the Government servants to hold additional area on account of such tractor/tubewell. The petitioner was, therefore, entitled tretain 800 Kanals of land in addition to 374 Kanals 17 Marlas originally inherited by the petitioner under para. 10(1) of Martial Law Regulation No, 115 as amended.
5. After scrutiny of his declaration form the Deputy Land Commissioner, D.I. Khan vide his order dated 14-7-1972 found the petitioner entitled to 499 P.I. Us. And an additional area equivalent to 832 P.I. Us. The petitioner was therefore, allowed to furnish fresh choice in respect of the additional area.
The area resumed from the petitioner was declared to be free from all incumbrances. It was, however, on 20-5-1974 that the learned Deputy Commissioner, D.I. Khan found that the petitioner was not required to surrender any land.
6. It was on 9-2-1980 that the Federal Land Commissioner in suo motu ex parte proceedings found that the petitioner owned 2,949 Kanals of land of which he has disposed of 695 Kanals 18 Marlas and was left with balance of 2,299 Kanals 2 Marlas which included his inherited land measuring 374 Kanals 17 Marlas. After allowing the petitioner to hold the inherited land determined the ceiling and an additional area on account of tractor, 695 Kanals 2 Marlas of land was found to be in excess hence ordered its resumption. The previous orders were accordingly set aside. The petitioner has, therefore, to approach this Court in Constitutional jurisdiction.
7. The aforementioned order is challenged in this writ petition on the following grounds :--
(i) That the direction of the Central Government empowering respondent-1 to hold further scrutiny of the petitioner's case was illegal and it was in conflict with the provision of section 35 of Act 2 of 1977; ' that the proceedings pending before the Federal Land Commission stood abated under section 25 on the publication of Gazette Notification dated 9-14977 under Act 2 of 1977; that respondent-1 was delegatee of the power exercisable by the Federal Government under section 22 of the Land Reforms Act, 1977 therefore, further exercise of power under sections 24/25 of the Act was unjustified;
(iv) that the proceedings were mala fide taken against the petitioner ex parte as no notice was served on him at the address given in declaration form, therefore, the order condemning him unheard is against the principle of natural justice;
(v) that before passing of the impugned order the land resumed had vested in persons who were not heard though the addresses of such purchasers were available in the Revenue Record in whose favour mutations have been attested;
(vi) that no interference was justified with the concurrent finding given by the lower forum after detailed scrutiny in the light of the statement made by the petitioner showing the acquisition of property, independently by his wife from her own independent resources which statement remained unrebutted; and
(vii) that the impugned order is based on misreading of evidence and misapplication of law.
8. After hearing the learned counsel for the parties it may be pointed out that allegedly suo motu proceedings under the Land Reforms Regulation, 1972 were pending at the time of commencement of Act II of 1977, therefore, the proceedings were deemed to have abated under section 25 of the Act. The Commission, however, assumed jurisdiction under Notification No, 11- 1977/1.R/1-78, dated 23-9-1978 which reads as follows:- "In exercise of the powers conferred by section 25 of the Land Reforms Act, 1977 (II of 1977), the Federal Government is pleased to direct that the proceedings in cases under paragraph 29 of Land Reforms Regulation, 1972 pending before the Federal Land Commission on the commencement of the said Act shall not stand abated."
' Such notification came for consideration before the Honourable Supreme Court in Federal Land Commission through its Senior Member, Islamabad v. Sher Muhammad and others and 29 petitions for leave to appeal (FLD 1990 Supreme Court page 626) against the finding of the learned Judge of the High Court that "under section 25 the Federal Government had the power to direct that a case or class of cases could not stand abated but it could not have issued the impugned Notification directing that all the cases which were pending before the Federal Land Commission before the enactment of the Act shall not be abated. The impugned Notification in fact purports to nullify the effect of section 25 of the Act as a whole and, therefore, it is ultra vires of the powers of the Federal Government." Their Lordships thereafter decided as follows:- "We also agree with the interpretation of the Notification in question by the High Court. Its language, intention and purport obviously was to do away with the abatement of all cases covered by section 25, which was neither the intention underlying the said provision nor by its language it was permissible. Accordingly, while condoning the delay in filing of some of the petitions we do not consider it a fit case for grant of leave to appeal. The same, therefore, is refused."
This is the crux of the matter and in absence of any material on the file that the present case was consciously considered by the Federal Government that the same shall not stand abated; the contention of the learned counsel for the petitioner prevails and it is held that the Senior Member, Federal Land Commission had no authority to re-open the past and closed chapter. Such being the case the second and third contentions of the learned counsel reproduced above become redundant and we would not like to go into the questions in detail.
9. The contention of the learned counsel that the petitioner was condemned unheard as he was not properly served in accordance with law on the given address before the impugned order was passed, has been seriously argued before us. The finding given in the impugned order on this aspect of the case is as follows:-- "There are two respondents, the declarant and his wife, notices were sent to their Lahore addresses where they live and Dera Ismail Khan where the land which is subject of these proceedings is situated. As service could not be effected on these addresses in the ordinary manner, it was made through the Daily press and was published in The Daily Mashriq on 19-10-1979 for the first hearing to be held on 7-11-1979."
' The above finding was seriously challenged on the grounds firstly, that the wife of the petitioner was reported dead as is evident from the record before the Commission and secondly, that service through publication in the Daily Mashriq was not proper as its circulation was mainly confined to N.-W.F.P. That petitioner is the resident of Lahore, therefore, he could have been served through publication in the widely circulated Daily of Lahore. And lastly that even in the ex parte proceedings respondent-1 was to record evidence before setting aside the findings given by the forums below of competent jurisdiction. His further grievance was that the impugned order was not communicated to the petitioner on his available address and that petitioner came to know of the order, for the first time, when the Deputy Land Commissioner, D.I. Khan summoned the parties for 8- 2-1981.
The above contentions raised were not satisfactorily met by the learned counsel for the respondents either in his arguments or from the record. It is also not denied that major portion of the resumed land in pursuance of the impugned order vested in persons who were its purchasers from ostensible owners for valid consideration but no opportunity of hearing was afforded to them.
It may also be pointed out that the question re-opened by respondent No, 1 pertained to that of facts which had been deeply gone into concurrently by the forums below and decided in favour of the petitioner. Such finding was also supported by the record. It was established before the authorities that the declarant's wife had independent source of income for acquisition of the land in question. Such finding was, therefore, not open to interference ex parte on mere presumptions and conjectures. Moreso part of the land in question was decreed in favour of the declarant's wife and other by the Civil Courts which had a binding effect. Reliance can be placed on Faderal Land Commissioner and another v. Muhammad Aslam Khan and others (1989 SCMR 6). In Qazalbash Waqf v. Chief Land Commissioner, Punjab, Lahore and others (PLD 1990 SC 99), a judgment of the Supreme Court (Shariat Bench), the provisions of sections 4, 5, 6, 7(5), 8, 9, 10, 11 to 17 have been declared as violative of Injunction of Islam which declaration is effective from and after 23-3-1990.
This writ petition is, therefore, accepted, the order dated 9-2-1980 passed by respondent No, 1 is declared illegal, without lawful authority and of no legal effect and as such set aside. In consequence all subsequent orders in pursuance thereof are quashed. There shall, however, be no order as to costs.