' Painda Khan petitioner, purchased land measuring 148 Kanals, 18 Marlas situated village Chellianwala, Tehsil Phalia, District Gujrat, from Muhammad Aslam son of Karim Dad, who is respondent No,5 in this petition, for a consideration of Rs,7,45,000 vide registered sale-deed dated 10-11-1985. In pursuance of the sale-deed Mutation No,4293 was sanctioned in favour of petitioner, on 13-2-1986 and possession was also delivered to him. Neither the sale transaction nor the mutation, referred to above, has ever been challenged by respondent No,5, who is still alive.
2. Mst. Rashida Bibi wife of said Muhammad Aslam vendor, who is respondent No,4 in this petition, filed an application on 11-2-1989, before the Collector/Deputy Commissioner, Gujrat, seeking cancellation of the mutation referred to above, as according to her the sale-deed and consequent mutation were violative of Martial Law Regulation 115, as by virtue of the questioned transaction, the vendor has been left with land less than "economic holding". On the basis of this application, vide order dated 29-5-1989 the Collector/Deputy Commissioner respondent No,3, ordered the cancellation of the mutation on the ground that it is violative of the provisions of M.L.R.
115.. This order was challenged in appeal before the Commissioner, Gujranwala Division, Gujranwala which was filed on 1-10-1989. The appeal was dismissed as being barred by time vide order dated 8-1-1990. This order was further challenged by the petitioner in revision before the learned Member, Board of Revenue respondent No,1, which has been dismissed by the learned Member vide order dated 4-6-1991, on the ground that the appeal being barred by time, has rightly been dismissed by the Commissioner, Gujranwala Division, Gujranwala. Through this Constitutional petition, the vendee-petitioner has challenged the orders dated 4-6-1991, 8-1-1990 and 29-5-1989, passed by the respondents Nos.1, 2 and 3 as being illegal and without a lawful authority.
3. Ch. Khurshid Ahmed, Advocate has appeared on behalf of the petitioner, whereas Malik Saeed Hassan, Advocate has entered appearance on behalf of contesting respondent No,4. Raja Saeed Akram Khan, learned Assistant Advocate-General represented the revenue authorities, who are respondents Nos.1 to 3. None has appeared on behalf of respondent No,5.
4. Learned counsel for the petitioner has contended that the jurisdiction to declare the transaction, as being violative of M.L.R. 115, vests only with the Authorities appointed under the Land Reforms Regulations, 1972 and not in any other Court/Authority, including the Revenue Authorities or the Civil Courts, and, therefore, the impugned order of directing cancellation of the mutation, being illegal, the subsequent orders are also illegal and void and, hence, are liable to be set aside. Learned counsel has further contended that respondent No,4 being not the vendor had no locus standi to challenge the validity of the questioned mutation, as she is not possessed of any right or interest- in-presenti, in the land in dispute, therefore, on this account as well the application filed by her was liable to be dismissed, but the learned Collector/Deputy Commissioner illegally directed the cancellation of the mutation on the basis of an application filed by an incompetent person, as the vendor has not felt aggrieved of the same, till today. In support of his contention, learned counsel has placed reliance on the law declared in cases of Nasir Ahmed Klian v. Mst. Ismat Jehan Begum (1968 SCMR 667) and Sadiq All v. Taj Din and others (PLD 1992 Lahore 158).
5. Malik Saeed Hassan, Advocate, learned counsel for the contesting respondent No,4, has contended that although there is no cavil with the proposition, that it is only the Authority appointed under the Land Reforms Regulation, 1972 who can declare the transaction as being violative of the said Regulation (M.L.R. 115), yet, the order passed by the District Collector, even if void, having not been challenged within limitation, upheld in appeal and revision in the hierarchy provided under the Punjab Land Revenue Act, cannot 'be interfered with in exercise of Constitutional jurisdiction of this Court and further that respondent No,4 does have locus standi to bring it to the notice of the Collector/Deputy Commissioner a patent illegality in revenue record for rectification whereof, she could lawfully pray. In support of his contention, learned counsel for the respondent has placed reliance on the cases of Nasir Ahmed Khan v. Mst. Ismat Jehan Begum (1968 SCMR 667) and Muhammad Amin Khan and 6 others v. The Central Government of Pakistan through Central Board of Revenue/Chief Land Commissioner, Islamabad and 18 others (PLD 1993 Pesh. 60).
6. In case of Nasir Ahmed Khan (supra) at page 671 of the report, it has been held that it is the exclusive jurisdiction of the Authorities appointed under the Martial Law Regulation 64 to declare a transaction as being violative of the provisions thereof and no other Court or Authority has jurisdiction in the matter. In case of Sadiq Ali (supra) at page 163 of the report, similar view has been taken by a learned Single Judge of this Court. In case of Muhammad Ishaq Khan v. Member (Revenue), Board of Revenue, Punjab, Lahore (W.P. No,64 of 1993/RWP), decided on 26-6-1994, I have also taken a similar view. The judgment referred to above was challenged before the Hon'ble Supreme Court and has been upheld vide judgment dated 30-11-1994 passed in C.P. No,411 of 1994.
In case Muhammad Amin Khan (supra) cited by the learned counsel for the respondent as well, similar view has been taken. Paragraph 9 of the said report is reproduced as under :-- "I have heard learned counsel for the parties and have also studied the case-law cited at the Bar.
The Courts have held the view that they have no jurisdiction to adjudicate upon the matter in view of the provision of Martial Law Regulation No,115. Para 3 of Martial Law Regulation No,115 (hereinafter referred as Regulation), relates to the restriction on ownership and possession of land. Para. 7, subpara. (1)(a) of the Regulation declares certain transfers as void. Para. 7, sub-para. (1) (b) is a saving clause whereby the transfer of any land may be declared valid if the Commission is satisfied that it was a bona fide transaction. Explanation (iii) to para. 7 of the Regulation narrates the factors to be taken into consideration by the Commission in determining whether the transaction referred to in clause (b) (1) was bona fide or not. Para. 26 of the Regulation bars the jurisdiction of any Court including the High Court and Supreme Court to call in question the proceedings of Regulation or any Rules or orders made thereunder. No Court or Authority shall have jurisdiction in respect of any matter which the Commission is empowered to determine.
Keeping in view the aforesaid provision, it is abundantly clear that it is the function of the Commission to determine whether a particular transaction is bona fide or otherwise and the Statute places bar on the jurisdiction of Courts in respect of any matter which the Commission is empowered to determine. This brings us to the argument of the learned counsel for the petitioner that if the act done or orders passed are not in accordance with the provision of statute, the Civil Courts will interfere and assume the jurisdiction. That may be true, but the question is whether the Land Commission has violated the provisions of Statute which created the Commission. I think no. Plaintiffs/petitioners never approached the Land Commission to tell them that the land could not be resumed as it was not owned by Abdul Sattar. The Land Commission could not take up the matter itself. In the case of Sher Zaman v. Muhammad Ishaq etc. PLD 1985 SC 114, it has been held that there is nothing wrong if plaintiff was referred to Land Commission for resolving the dispute raised before the Civil Court. Further it has been held that though the Civil Court would be competent to decide the various questions but subject to condition that where the Commission was also competent to determine the matter, final decision shall always remain of the Commission. The Authority cited is of no help to the petitioners and instead it supports the contentions of the learned counsel for the respondents. In Umar Khan's case 1980 CLC 1717, the order of allotment of the Land Commission was challenged in writ and it was declared illegal and sitting tenant was held entitled to the land. The facts involved were absolutely different. In the case of Mst. Nusrat Begum PLD 1975 'Rev. 95 Sindh, the decision of the Land Commission was challenged and it was found that the Commission had not followed the principle for determining the bona fide transfer under para. 7 of MLR No,
115. This is exactly what we interpret the Regulation that it is the Commission who would determine the bona fides of the transaction as stated above. Similarly, in the case of Abu Syed Rashid Baklit Mazumdar PLD 1968 Dacca 152, the jurisdiction of the Civil Court was held as barred provided the action under the Statute. The case was under East Pakistan Wakf Ordinance (I of 1962), in which the order of renewal of Mutwalli was passed without notice to him."
7. In the case of Ghulam Muhammad alias Ghulamoon v. Maula Dad and 6 others (1980 SCMR 314) it has been held that a party to transaction cannot challenge the same as being violative of the provisions of MLR 64, as a suiter. At pages 314 and 315 of the report, it has been held as under:-- ' The petitioner was allottee of nearly 25 acres of land under the Colonization of Government Lands (Punjab) Act (V of 1912). Before obtaining proprietary rights he entered into agreements of sale with the respondents (other than the Government) cn different dates from 1964 to 1966. He also received consideration from and handed over the possession to them. They also deposited the dues recoverable by the Government. This payment was one of conditions for conferring proprietary rights to the allottees under the relevant scheme. However, when approached the Deputy Commissioner rejected their application for granting permission for sale. The purchasers' claim was that they having fulfilled all the necessary conditions including payment to the Government which was accepted from them, they had become the owners. Notwithstanding the same the petitioner refused to get mutation sanctioned in their favour and instead became instrumental in initiating proceedings of ejectment against them. They, therefore, tiled a suit for declaration and permanent injunction impleading the petitioner as also the Provincial Government.
It was dismissed mainly on the consideration that the transactions in question were hit by para. 25 of Martial Law Regulation 64 of 1959; and that they were against section 19 of the Colonization of Government Lands (Punjab) Act V of 1912. On first appeal a learned Single Judge of the Lahore High Court held that para. 25 of Martial Law Regulation 64 of 1959 was not attracted to "agreement" of sale as distinguished from the disposition of property and that section 19 of the Colonization of Government Lands (Punjab) Act (V of 1912) was also not applicable in the circumstances of the case when the Provincial Government on account of its conduct during the trial of the suit, did not deny the claim of the purchasers and also for the reason that notwithstanding the said provision, the petitioner could not be permitted to take advantage of such plea so as to deprive the purchasers of due benefit of a transaction which otherwise stands established. The High Court accordingly reversed the decree passed by the trial Court. Hence, this petition by the vendor.
' Learned counsel for the petitioner has reiterated both the points which prevailed with the learned trial Court. We agree with the learned Judge of the High Court that due to the agreement wherein the petitioner had undertaken to do all that was necessary for formally completing the sale and having parted with the possession after receiving the consideration, he could not rely on either para. 25 of Martial Law Regulation 64 of 1959 or on section 19 of the Colonization of Government Lands (Punjab) Act (V of 1912) so as to non-suit the purchasers; particularly when the Provincial Government did not contest the suit nor any other functionary of the State raised any objection to the declaration sought in the suit. In the circumstances of this case we do not consider it a fit case, on account of the conduct of the petitioner himself, to grant special leave. This petition is accordingly dismissed."
8. I have considered the arguments addressed by the learned counsel for the parties in the light of law declared in the aforementioned cases and have persued the record.
9. . It is not denied that the petitioner purchased the land in dispute from the husband of respondent No,4, who is still alive. It is not denied that the vendor has not himself challenged the transaction till today. Respondent No,4 his wife, has no right or interest-in-presenti in the land in dispute therefore, she had absolutely no locus standi to move for cancellation of the transaction/mutation in question on the above account and also in the light of law declared in the case of Ghulam Muhammad alias Ghulamoon (supra), A wherein it has been held that even a party to the transaction cannot challenge the validity thereof on the ground that it is violative of the provisions of MLR 115. Therefore, I hold that the application filed by the respondent No,4 before the Collector/Deputy Commissioner was not filed by a competent person and therefore, order passed on the basis thereof, affirmed in appeal and revision, is absolutely illegal, without lawful authority and, hence, is void ab initio. .
10. As regards the argument of the learned counsel for the respondent that even a void order has to be challenged within time and as the same has not been challenged within limitation, the order passed by the Collector is not liable to be interfered with in this writ petition, the same is based upon a misconceived motion of the correct legal position. Firstly, an order passed by a District Collector on the revenue side does not create or extinguish any title in the property and, therefore, if the basic transaction is upheld as being lawful, the order passed by the District Collector even if upheld in appeal cannot invalidate the transaction merely by ordering cancellation of the mutation of sale which has been sanctioned on the basis of a registered sale-deed. Even otherwise, a void order even if upheld in appeal or revision remains void in view of the law declared in the case of Yousaf Ali v. Muhammad Aslam Zia and 2 others (PLD 1958 SC (Pak.) 104) and no period of limitation stands in the way of declaration of such an order as being non- existent in the eye of law as held in the case of Hussain Bakhsh and others v. Settlement Commissioner and another (PLD 1969 Lahore 1039). .
10. . Resultantly, I accept this writ petition and declare that the orders dated 4.6-1991, 8-1-1990 and 29-5-1989 passed by respondents Nos.1 to 3 are illegal and without a lawful authority and void and, hence, are set aside with C the result that the mutation of sale shall remain intact as it originally stood sanctioned prior to the passing of the order of cancellation thereof. Respondent No,4 shall bear the costs of this litigation up to the level of this Court. .