MIAN ALLAH NAWAZ, J.- This judgment will govern Writ Petition No.454 of 1977 and W.P.No.982/77 as both of these arise out of same factual background and involve examination of same factual background and involve examination of same questions of law.
2. Facts, briefly stated giving rise to these Petitions, are that Mst. Zeenat petitioner in W.P.454/77 and respondent in W.P.982/77, was owner of agricultural land in various revenue estates. By means of mutation No.100, attested on 23.1.1971, she made the sale of land measuring 75.469 Acres, situated in the area of Sher Muhammad Wala for a sum of Rs.70,000/-. She received the total consideration of alienated land and delivered its possession to Shahab-Ud- Din vendee. By yet another sale embodied in mutation No.55 dated 8.1.1977, she transferred another piece of agricultural land measuring 180.678 Acres situated in Chak No.62 Shamali(Northrn), Tehsil Sergodha in favour of Brig.
K.M.Idrees. With the promulgation of Martial Law Regulation No.1 15/72 (shortly stated regulation), she filed declaration wherein the aforesaid transactions were mentioned. The Land Commissioner vide order dated 27.9.1972 upheld the recommendation of Deputy Land Commissioner and validated above-mentioned transactions. Review application was lodged before athe Land Commissioner, who vide order dated 28.9.1972 upheld the transaction in favour of Shahab-Ud-Din, however, the transaction in favour of K.M.Idrees was not accepted.
3. Feeling dis-satisfied with this order Brig.K.M.Idrees filed appeal which was accepted by the Add!.
Chief Land Commissioner on 12.4.1974. This, however, did not bring an end to the misery of the Brig.
K.M.Idrecs. Federal Land Commission, on the basis of report submitted by Federal Land Commission Inspection Team, commenced suo motu action under para 29 of the Regulation. After hearing the parties, the learned Land Commission came to the conclusion that the afore noted transactions were fake and designed to defeat the provision of regulation. On this finding the learned Member Federal Land Commissioner set at naught the above-noted sales and directed {he Deputy Land Commissioner to recalculate the holding of Mst. Zeenat.
4. Learned counsel or the petitioner, in support of these petitions raised thefollowing points:- FIRSTLY The Member Federal Land Commission had nullified the transactions on the premises of inadequate considerations and without recording any evidence to that effect. Continuing the learned counsel contended that the Federal Land Commission, while forming such opinion, had to take into consideration the whole of Explanation III to para 7 of the regulation. Reliance was placed on the cases of Abdu! Hamid Khan Vs. The OSD Federal Land Commission and others (1979 CLC 211), (the same case reported in 1981 CLC 719), Santo and 5 others Vs. OSD, Federal Land Commission, Rawalpindi and others (1981 CLC 1308), Mst. Talawatun Nisa and others Vs OSD, Land Commission Karachi and another (1984 CLC 1712) and Haji Muhammad Umar Vs. The OSD, Federal Land Commission and 3 others (1984 CLC 1868) Mst. Saeeda Nighat Madni Vs Member Federal] Land Commission and 2 others (1985 Lahore 174) ,and Muhammad Yousuf AH Shah Vs. Federal Land Commission, Government of Pakistan, Rawalpindi and 2 others (3995 CLC 369).
SECONDLY The learned Federal Land Commission has passed the order on the basis of misreading and non-reading of revenue record, which was admittedly not in the custody of the petitioner.THIRDLY That Shahab-Ud-Din as an alienee was a necessary party and the learned Federal Land Commission had no power to decide the case against him without affording opportunity of hearing.5. Malik Muhammad Sulcmen Awan, learned A.A.G, on behalf of respondents supported the impugned decision.
6. We have heard the learned counsel for the parties at a considerable length and have carefully attended to their rival contentions. We are impressed by the arguments advanced by the learned counsel for the petitioner. The perusal of the order clearly shows that the learned Member Federal Land Commission had only taken into consideration the circumstance of inadequate consideration. We are afraid this approach is clearly in defiance of explanation 3 to para 7 of the regulation. It reads as follows:-
7. Explanation III: In determining whether a transaction referred to in clause (b) of paragraph (1) was bona fide or otherwise, the Commission shall, tpnong other matters, take into consideration the following factory:
(1) Whether adequate, consideration had been paid by or on behalf of the person in whose favour the transfer has been made or any right, interest or encumbrance has been created;
(ii) under whose management the land has remained which is claimed to have been transferred or in respect of which any right, interest or encumbrance has been created;(iii) who has been paying the land revenue and other charges in respect of such land;(iv) who have been receiving the rent for or balai share from such land.(2) If any question arises where any transfer or other transaction is or is not void under sub-paragraph (1), the question of the Commission thereon shall, subject to the provision of paragraph 29, be final.(3) Nothing in paragraph (1) shall apply to. Any transfer of land or the creation of any interest or right or encumbrance on any land made by a person who held on 20th December, 1971, land in excess of the permissible limits under paragraph 8, after he has surrendered to Government, in accordance with the provisions for this Regulation, the land in excess of such limits."
This explanation came up for consideration before Karachi High Court. His lordship Mr. Justice Zafar^ Hussain Mirza, then Judge of the High Court; after comp prehensive analysis of this explanation in the case of Abdul Hameed Khan, supra said. "The plain reading of the Explanation makes it clear to us that the question of adequate consideration is only one of the factors to be taken into consideration among other matters. Therefore, the mere fact that the consideration for a transaction may appear to be inadequate cannot be the sole basis for rejecting a transaction as not bona fide and if upon the other considerations mentioned in Explanation III the Commission finds that the transaction is bona fide, it will not be under any obligation to reject the same. In this case the other factors taken into consideration by the Land Commissioner were thal the transaction was by a registered Sale Deed, Mutation had been effected before the crucial date and transferee was found to be in effective possession and management of the property and was paying land revenue. The learned officer did not upset the findings on the other considerations which in our view cotnmuialively fully justified the order passed by the learned Commissioner. The view taken in the aforesaid case was followed by the Division Bench of Karachi High Court in the case of Samo Vs. OSD FLC 1979 CLC 211), Mst. Talawatunisa Vs. OSD, Land Commission Karachi (1984 CLC 1712), Haji Muhammad Umar Vs. OSD, P.L.C (1984 CLC 1868), Yusuf Ali Shah Vs.F.L.C (1995 CLC 369) and Mst. Saeed Nighat Madni Vs. Member Federal Land Commission and 2 others (PLD 1985 Lah. 174).
7. Judged from the above angle, it is 'quite clear to tis that the learned Member Federal Land Commission had adjudged the validity of aforenoted sales on the yard-stick of circumstances embodied in clause (i) to Explanation 111 and had omitted to consider the factors contained in clauses (ii), (iii) and (iv) to Explanation-Ill on law, he was required to examine all the factor noted above to determine as to who was ineffective control of the alienated land; who was paying its land revenue and charges and who had been receiving its rent. All the factors, noted above, had to be considered for the purpose of determining the bona fides of the transactions.The circumstances embodied in clause (i) to explanation- Was not sufficient for treating the transaction to be invajid.
From the above perusal of the impugned order, it is clear thal the Member, Federal Land Commission omitted to consider the circumstances embodied in the clauses (ii),(iii) and (iv) to Explanation III. This being the position, the rule laid down Abdul Humid Khan Vs. The OSD FLC (1979CLC 211), is fully attracted to the facts and circumstances of this case. We are, accordingly, left in no manner of doubt that the impugned order passed by the Member Federal Land Commission was clearly contrary to the express provisions of Explanation III to para 7 of the Regulation. Thus, the order passed by the Member Federal Land Commission cannot be sustained. Ii is, therefore, held to have been passed without any lawful authority.
8. There is Yet another aspect of the case. Para 29 of the Regulation came up for consideration in the ease of Munir Ahmad Vs. Chairman Federal Land Commission of Pakistan and another (1994 C.L.C 20) wherein it was held-that " the SUO motu power of Federal Land Commission under para. 29 of the Land Reforms Regulation, 1972 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 was empowered to summon the record of Subordinate authorities for the purpose of satisfying itself about the correctness/validity of the orders passed by them/action taken by them/proceedings initiated by them/action against owners of land. The Federal Land Commission, thus, can set aside the orders/actions of the subordinate authorities if it comes to the conclusion that orders/actions suffer from excess of jurisdiction, absence of jurisdiction or were in defiance of same express provisions of law. This jurisdiction was amalgam of wide as well as limited power. This proceeded upon the principle of doing ex debitio just fee and was not entitled to victimise any one." The rule laid down in Munir's case supra is clearly applicable to facts of the petition in hand. A perusal of the impugned order clearly shows that the learned Member Federal Land Commission, passing the impugned order had not at all examined the merit and demerit of the order passed by the Addl. Chief Land Commissioner dated 12.4.1974. So, accordingly the rule laid down in Munir's case is fully applicable to the facts and circumstances of these cases. The impugned order passed by the Federal Land Commissioner even on this ground is wholly without jurisdiction.
9. A result of the above discussion these Constitutional petitions are allowed with the grant of requested relief. There shall be no order as to costs.