RIAZ HUSSAIN, J.-.By this judgment we propose to decide Writ Petition Nos. 2597/77 and 699/7*7 find by declarant Siraj Din and Shamas- ud-Din donee respectively as these have arisen out of that the order passed by Member Federal Land Commission dated 7.7.1976.
2. Succinctly, the facts of the petitions are that the petitioner Siraj Din (now deceased) was an owner of 269 acres 1 maria in Chak No,. 343-EB. Vide mutation No. 93, dated 29.3.1971, he donated 159 acres in favour of Ahmad Din and I0O acres in favour of his brother Shamas-ud-Din. He find a declaration under Land Reforms Regulation, 1972 wherein he mentioned the aforesaid mutation.
This transaction was scrutinised by the Land Commissioner who declared it void. The petitioner Siraj Din find an appeal before the Chief Land Commissioner who held that the gift in favour of respondent No. 3 to the extent of 97 acres 1 maria was valid. Subsequently Federal Land Commission Inspection Team scrutinised the above-mentioned transaction and raised the objections that the gift made vide mutation No. 93, dated 29.3.1971 was void for the reason that Shamas-ud-Din respondent No. 3 was not entitled to more than l/3rd share of the total land, measuring 75 acres, owned by their father Sher Muhammad and as such the transaction exceeding 25 acres in his favour was void.
3. Federal Land Commission Rawalpindi, on the basis of report of Inspection Team, in exercise of his suo motu powers' under paragraph 29 of the Land Reforms Regulations, 1972 initiated the proceedings and vide order dated 7.7.1976 declared the afore-noted gift void and held that brother was not a person mentioned in Explanation 1 to paragraph 7(l)(b) of Land Reforms Regulation, 1972.
He further ruled that not Notification under paragraph 4 (8) of the same Regulation could be issued which was in conflict with it. As a result of above findings, the mutation No. 93 was set at naught and the authority below was directed to count the land donated to Ahmad Din in the holding of declarant and then determine his entitlement afresh.
5. Through this Constitutional petition the petitioners have called in question the legality of the aforesaid order dated 7.7.1976.
6. Learned counsel for the petitioners submit that the impugned order was liable to be set aside on the following grounds:- First: Individual member of the Federal Land Commission could not exercise the powers specifically reserved for and exercisable by the Federal Land Commission.
Second: the order was against the principle of natural justice that is "audi alterm partem" as the petitioner Shamas-ud-Din, petitioner in Writ Petition No. 699/77 had been in possession of the land gifted by Siraj Din petitioner and had been given opportunity of hearing. The impugned order, therefore, was Corum non judice.
Third: the Federal Land Commission did not appreciate the order of Chief Land Commissioner in its correct perspective and set aside that order in a slipshod manner, therefore, his order dated 7.7.1976 could not be termed as lawful.
Fourth: since petitioner Siraj Din was unmarried, respondent No. 3 was also his legal heir and, therefore, he could validly gift the land at least to the extent of 97 acres, 1 maria in his favour.
Possession of the land was also transferred to the donee and, therefore, the gift was legally complete in all respect.
7. Learned A.A.G, and Mr. Noor Mustafa Khawaja, Advocate for the Land Commission have vehemently defended the impugned order.
8. We have heard the learned counsel at length and perused the record minutely.
9. The first objection is not tenable in view of law enunciated' in Sardar Abdul Ghafoor Khan and 3 others v. The Federal Land Commission, Islamabad (PLD 1979 Lahore 375) wherein it was observed:- "So far as the first legal objection is concerned, it stands disposed of in view of the validation clause introduced by amendment in law effected by Ordinance No. XXIX of 1978."
10. Paragraph 29 of the Regulation was considered threadbare by the Honourable Supreme Court Mst. Tayyab Khanam and others v. Chairman, Federal Land Commission and others (1984 SCMR 1110) wherein their Lordships observed as follows: - "The Federal Land Commission, while exercising suo motu powers, under paragraph 29 of M.L.R. 115, had only limited powers to examine the correctness and propriety of the order of the learned Chief Land Commissioner being explicit and detailed . On the subject, the limited powers under paragraph 29 could not be exercised in the manner in which these have been so exercised. The wording of paragraph 29 corresponds with the wording of section 435 of Cr.P.C, and the limitation in force thereon would also be applicable to the exercise of powers under paragraph 29. Reliance was placed on Chief Land Commissioner v. Maula Dad (1), Abdul Hamid Khan v. Officer on Special Duty, Federal Land Commission (2), Sain Bux and others v. Officer on Special Duty (3) .
The dictum of the Supreme Court in PLD 1974 SC 139 is only applicable where there has been no ignoring of record or misreading thereof. Moreover, the Land-Reforms Regulation o. 115 being confiscatory in nature and appropriation without any compensation, the Supreme Court and the High Court, in order to do complete justice, had the jurisdiction and the powers to go into the facts and this is to be done in f far more effective manner.
Under the Muslim Law the moment Sardar Hamid Hasan declared his intention of making of gift in favour of his heirs, there could be no further scrutiny. In this behalf reference is made to Ashfaqur Rehman Khan u. Ch. Muhammad Afzal, Mutwali, Waqf Property and another (IK Hayat Muhammad and another v. Member, Federal Land Commission, Rawalpindi and 2 others (2), Zulfiqar All Khan v. Additional Chief Land Commissioner, Punjab and 2 others (.3) Sardar Abdul Ghafoor Khan and 3 others v. The Federal Land Commissioner, Islamabad (4) . Jehan Khan, etc, v. Member Federal Land Commission (5b In PLD 1979 Lah. 375 it was held by the learned Judge (Shafiur Rehman, J., as he then was) that Commissioner or a Member of it had no jurisdiction in law to consider the merits of the transaction made in favour of the heirs during the period prescribed in clause (b) paragraph 7 of the Regulation". Second proviso to paragraph 7 (i) (b) reads as follows:- "Provided further that nothing in this clause (b) of paragraph 7 shall apply to:
(i) any transfer of land or creation of any right or interest in or encumbrance on any land, by way of gift or otherwise, made by a person in favour of his heirs, or "
10. In Munir Ahmad and two others v. Chairman, Federal Land Commission ( PLJ 1994 Lahore 72), the scope and content of paragraph 29 of the Regulation was also taken into consideration by one of us (Mian Allah N was, J.). After resume of the relevant case law, it was observed:- "(i) The suo motu power of Federal Land Commission, under para 29 of the Regulation is almost analogous to the revisional power of Criminal Courts under Section 439 of the Code of Criminal Procedure. The revisional Court, thus, under para 29 of the Regulation is empowered to summon the record of subordinate authorities for the purpose of satisfying about the correctness/validity of the orders passed by them/actions taken ' by them/proceedings initiated by them against owners of lar d The Federal Land Commission, thus, can set aside tl ? ( orders/actions of the subordinate authorities if it comes to the conclusion that orders/actions suffer from excess of jurisdiction, absence of jurisdiction or are in defiance of some express provision of law. The jurisdiction is amalgam of wide as well as limited power. This proceeds upon the principle of doing ex- debitio justice and is hot entitled to victims any one.
(ii) The alienations made by way of gifts or transfers made by declarant to his legal heirs persons enumerated in proviso to subpara (b) of para 7 of the Regulation are immune from scrutiny of .
Land Reform Authorities.
(iii) The Regulation is confiscatory in nature and embodies the principle of expropriation of the property of citizens without payment of compensation. It has, so, to be construed strictly and in favour of the subject."
11. Applying these principles to facts and circumstance of the case in hand, it is clear that Shams- ud-Din/donee was not a party before the Federal Land Commission and was condemned unheard.
This being the position, the impugned order is in contravention of principles of natural. Justice and so it cannot be sustained. There is yet another aspect of the case. The learned Federal Land Commission, while passing the impugned order, did not advert to the propriety/soundness of the decision of the Chief Land Commission. Under the law, he was required to examine as to whether the order, impugned before him, suffered from any error of jurisdiction Qr any legal defect was floating from the record or was based upon misreading and non- reading of evidence. A perusal of the order of Federal Land Commission would show that no such exercise was done by it. On this state of affair, we have no hesitation in coming to the conclusion that the impugned decision suffer from illegality apparent on the face of record and so in view of rule laid down in Munir Ahmed's case (supra), we cannot uphold the impugned order.
12. Haring held so, the only question surviving for examination is as to what relief be granted to the petitioners. Ordinarily, 'his Court, in exercise of Constitutional jurisdiction, remands a case to the concerned forum if it comes to the conclusion that the order is without jurisdiction or is without any lawful authority However, this principle is not a rule of thumb and can be departed from, In view' of the fars and circumstances of the case. In the present case, the relevant provisions of Land Reforms Regulations, 1972 as well as Land Reforms Act, 1977 had been declared contrary to Injunction of Islam by Supreme Court in Qazalbash Waqf and others v. Chief Land Commissioner, Punjab, Lahore and others (PLD 1990 SC 99). The review application find by Government of Punjab was dismissed. These statutes accordingly stand erased from statute book. In this legal background, it will be just a futile exercise to send the matter back to the Federal Land Commission for re-examination.
13. As a result of the above discussion, we accept these petitions with grant of the requested reliefs.
Since the points involved in these petitions were wholly legal, we do not like to burden any party with costs.