MIAN ALLAH NAWAZ, J.---This judgment will govern 14 Writ Petitions bearing Nos.7597 and 8056 to 8068 of 1993. All of these petitions assail the validity of order passed by the Member, Federal Land Commission dated 19-6-1993 accepting 14 Revision Petitions filed by Muhammad Arif respondent.
All of these were heard together and involve examination of common questions of law. These are, therefore, being disposed of by this common judgment.
2. The facts, briefly stated, giving rise to these petitions are that agricultural land measuring 88.175 acres situated in the area of Village Khaliqabad, Tehsil and District Lahore, was surrendered by Qazilbash Waqf under section 9 of the Land Reforms Act, 1977 .(hereinafter referred to as "Act"). The afore stated land was granted to 30 eligible tenants under section 15 of the Act. This happened vide order of Deputy Land Commissioner dated 22-2-1979. Mutations of these grants were, accordingly, incorporated in the Revenue Record. Liaqat Ali, respondent No.4 herein, and other grantees alienated their grants in favour of Agrics Cooperative Housing Society (petitioner in all the writ petitions) by means of various registered sale-deeds. The said purchaser obtained possession of the said pieces of land sold to it, prepared a Housing Scheme, obtained its sanction from Lahore Development Authority and started development work on the land in dispute. The Society, thereafter, divided the property in dispute into residential plots and allotted them to its various members. On 19-10-1987 one Muhammad Arif, herein respondent No.6, moved a petition under section 16 of Act read with Rule 10 of the Punjab Land Reforms Rules, 1977 alleging therein that the grantees had no authority, whatsoever, to make sale of their grants to Society and so the grants made in favour of the tenants had become null and void and the sale-deeds made by them in favour of the Society be adjudged as nullity and land in dispute be resumed and be granted to him. Deputy Land Commissioner, Lahore, rejected the application vide order dated 22-11-1990.
While passing this order, the Deputy Land Commissioner, however, held that the sale made by the grantees to Society were null and void and so he made an order by which the Authorities were directed to take over the possession of the land in dispute in favour of the Land Commission.
Feeling aggrieved, the Society as well as Muhammad Arif and others filed 28 appeals which were dismissed by the Additional Commissioner (Rev.)/Land Commissioner, dated 8-4-1991.
3. Still dissatisfied and still undaunted, petitioner Society (Muhammad Arif etc.) filed revision petitions. After hearing both the parties, the Chief Land Commissioner, Punjab, came to manifold conclusions: that the Society was the bona fide purchaser from grantees; that it had prepared a housing scheme and obtained its sanction from Lahore Development Authority; that the grantees/sellers were recorded as owners in the Revenue Record and so the sales made by them to Society were protected under section 41 of the Transfer of Property Act; that the grantees were neither traceable nor had entered appearance before the Land Reforms Authorities below and before him; that they had manoeuvred to make sales to Society with active help of Revenue Authorities who were liable to be prosecuted against under relevant applicable laws and that Muhammad Arif, herein respondent No.6, was not entitled as informer to seek grant of the land in dispute. On these conclusions, the Chief Land Commissioner, Punjab accepted the revision petition lodged by the Society. Against this order, Muhammad Arif filed 14 revision petitions which were accepted by Member, Federal Land Commission on 19-6-1993. While accepting the revisions, Member, Federal Land Commission found that the sales made in favour of the Society by grantees were in contravention of section 16 of the Act and so were null and void. The operative portion of the impugned order runs as follows: "6. In view of the above legal and factual position of the case and after examining all the records, it is observed that there was no option/jurisdiction of the Chief Land Commissioner, Punjab to allow the sales in question ignoring the mandatory provisions of the conditions for grant of land under the Act and procedure laid by the Land Commission, Punjab in their Circular Letter No.305-91/280 of April 30, 1991. Therefore, on this short ground alone, the order passed by the Chief Land Commissioner, Punjab of May 21, 1992, to this extent is incompetent and coram non judice in the eyes of law."
This is how all these Constitutional Petitions come to this Court.
4. The arguments advanced by the learned counsel for the petitioner can be conveniently summarized as below: Firstly; relying upon Muhammad Yusuf Ali Shah v. Federal Land Commission, Government of Pakistan 1995 CLC 369, learned counsel contended that with the promulgation of the Act, the Federal Land Commissioner had no power to set aside the sales made through registered sale- deeds by grantees in favour of the Society. On the basis of this argument, it was submitted that the impugned order passed by the Member, Federal Land Commission was wholly without jurisdiction and was, so, void ab initio; Secondly; that the sales were made by the grantees in favour of the Society by means of registered sale-deeds; that the grantees had obtained total consideration from petitioner, had delivered the possession of the land in dispute to the Society; that the Society had prepared a Housing Scheme, obtained its sanction from the Lahore Development Authority, had divided it into plots and sold to its members who had constructed their houses over the plots allotted to them. On these circumstances, it was strongly suggested that the principle embodied in section 41 of the Transfer of Property Act was clearly applicable and the sales in favour of the Society were clearly protected.
The order passed by the Member, Federal Land Commission was simply arbitrary, capricious and it amounted to ruination of the members of the Society; Thirdly; that the grantees had made the sale of their grants in the year 1980. The application was moved by Muhammad Arif after lapse of almost seven years. The applications of Muhammad Arif were, therefore, completely barren by time. Similarly, the revision petitions by Muhammad Arif were not within time. Learned Member, Federal Land Commission had not adverted to these aspects of the revision petitions lodged before him and he clearly erred in law in entertaining such time -- barred petitions; Fourthly; that the order of the Chief Land Commissioner, Punjab was wholly just, equitable and passed after taking into consideration peculiar circumstances of sales.
5. As usual the grantees had not appeared in Court and were proceeded against ex parte. Learned counsel for Muhammad Arif respondent, however, undertook the defence of the impugned orders.
In reply he raised following points:--- Firstly; that the tenants have no right under section 16 of the Act to make the sale of agricultural land which was given to them by way of grant. On this premises, it was strongly suggested that the sales were out and out void and were, so, rightly held as such by Member, Federal Land Commission; that under para. 15 of the Act, the land resumed from deviant grantees was to be distributed among other landless tenants of the revenue estate in which the resumed land was situated. On the rational of this argument, it was submitted that Muhammad Arif respondent No.6 was entitled to grant of the land which was resumable from grantees; Secondly; that the Society had purchased the land from grantees who were not its owners and the pieces of land had been given to them by way of grants. On these circumstances, the principles embodied in section 41 of the Transfer of Property Act were clearly inapplicable to the facts and circumstances of these cases. On these reasonings, it was vehemently contended that the Chief Land Commissioner had no power, whatsoever, to validate the void sales in favour of the Society.
6. From the foregoing narration of facts and circumstances of the case and arguments advanced by the learned counsel for the parties, the following questions emerge for consideration:---
(i) Whether the Member, Federal Land Commission had power under section 27 of the Act to adjudicate revision petition filed by Muhammad Arif?
(ii) Whether the Chief Land Commissioner had jurisdiction to apply provisions of section 41 of the Transfer of Property Act in order to validate the sales made by the grantees in favour of the Society?
(iii) To what relief the petitioner Society/purchaser are entitled?
As regards the first question, it is free from difficulty. This point came up for consideration before a Division Bench of this Court comprising myself and my brother Ausaf Ali Khan, J. (as he then was) in Muhammad Yusuf Ali Shah v. Federal Land Commission, Government of Pakistan 1995 CLC 369.
After an exhaustive survey of the laws relating to Land Reforms, para. 29 of the Land Reforms Regulations Act, 1972 (MLR 115) and section 27 of the Act, we came to following conclusion: "Guided by the above rule of construction, we are of the view that section 27 of the Act and para. 29 of the Regulation are mutually inconsistent. The cases in hand are covered by section 27 of the Act.
From the plain reading of this section, it becomes abundantly clear that neither the Deputy Land Commissioner, nor the Additional Chief Land Commissioner nor the Federal Land Commission had any authority, whatsoever, to initiate suo motu proceedings against the petitioner. This being the position we hold that the impugned orders passed by the Land Commissioner dated 19-1-1983, by the Additional Chief Land Commissioner, Punjab dated 20-7-1973 and by the Federal Land Commission dated 23-11-1983 (in both cases) were wholly without jurisdiction. "
7. From the foregoing, the scope/ambit of section 27 of the Act becomes clear. This section clearly prescribes that the Federal Government is the sole repository of the power to take cognizance of cases which were not dealt with by, the Government or withdraw any case pending before the Commission, call for the case decided by the Commission or by any authority designated by it and pass appropriate order. It is the power of 'the Federal Government or its constituted Authority. The Federal Land Commission/Member, Federal Land Commission, without such authority, does not figure in this section. It, therefore, clearly follows that the Member, Federal Land Commission, had no authority whatsoever to pass the impugned orders. On this state of affairs, we have no difficulty in concluding that the orders passed by the Member, Federal Land Commission dated 19-6-1993 are wholly without jurisdiction and cannot be sustained. The impugned orders are accordingly declared illegal as having been passed without any lawful authority and are thus of no lawful consequence.
8. As regards question No.2, it is to be noticed that it has two parts; firstly, whether the Chief Land Commissioner had authority to validate the sales made by grantees to petitioner in contravention of section 16 of the Act by recourse to section 41 of the Transfer of Property Act and, secondly, whether the petitioner is entitled to seek any relief under the Act. In order to answer these questions, we proceed to examine the relevant applicable provisions of the Act, which are sections 9, 15, 16 and 17. These provisions require in depth study.
9. Section 9 of the Act enacts that the land in excess of the area, which a person is found entitled under section 3 or subsection (5) of section 7 of the Act shall immediately vest in the Provincial Government free of any encumbrances or charge. Section 15 of the Act lays down that the land vested in the Provincial Government shall be granted to its tenants free of charge, which is subject to the following conditions:--- Provided that no land shall be granted to a tenant who but for the coming into force of this Act, would have been entitled to inherit land from a person who is required to surrender land under section 9.
(2) Where any tenant who is entitled to grant of land under sub--section (1) already owns land, he shall be granted only so much land, which together with the land already owned by him, does not exceed twelve acres.
(3) Land which is not granted under subsections (1) and (2) shall be granted to other landless tenants or persons owning less than twelve acres.
Sections 16 and 17 are very important provisions. First section places restrictions on the grants made to tenants. It prescribes that grantee/his heir, shall neither alienate the grant by sale, gift, mortgage or by any other means within a period of 20 years commencing from the date of grant.
This restriction is relaxed only in one circumstance, i.e. The grantee shall be entitled to mortgage it to Government or any other Governmental financial institution in order to obtain loan. Subsection (1-b) of section 16 also enjoins the grantee to maintain the land and use it for only agricultural purposes. Clause (c) restrains him from subletting it. We now reach subsection (2) of section 16 which reads as follows:--- "(2)The Provincial Land Commission concerned may cancel a grant for violation of any of the terms and conditions of the grant after giving an opportunity of being heard to the grantee or his heirs, as the case may he "
Under this subsection, Provincial Land Commission is empowered to cancel the grant, if grantee commits the breach of above restrictive conditions. The grant can be cancelled only after hearing the affectee.
10. Now comes section 17 of the Act. This, in our view, is not in derogation of section 15 of the Act and is rather complementary to the same. It provides a different mode of disposal of land vested under the Act. It bestows the power upon Provincial Government to utilise or dispose of surrendered land under section 9 for such public purpose and in a manner it deems fit. The power of Government is subject to only one condition that it shall obtain sanction from Federal Government: From the above pragmatic analysis, we are clear in our mind that under this section, the Provincial Government is conferred with the power to dispose of the land surrendered under section 9 of the Act or resumed under section 16(2) of the Act for public purpose and in a manner it deems fit after seeking the concurrence of the Federal Government. The circumstances, in which this mode is to be adopted, are specifically provided therein. The Legislature, despite its wisdom, cannot cover all the eventualities arising out of march of the time and so this power has been conferred to meet the exigencies, of time arising out of unforeseen events which might be beyond the control and beyond human vision. From the above analysis, we conclude that the grant made to tenants under section 15 of the Act were mere grants and were subject to restrictive covenants embodied in sections 15 and 16 of the Act. These grants were/are bereft of attributes of absolute ownership. In this view of the matter, we are thus of a considered opinion that under section 15 of the Act, grant made to tenants could not be transferred, alienated by the grantee to any person.
11. Having answered the first part and having held that the sales made by the grantees were invalid the question for examination is whether the Chief Land Commissioner, Punjab could validate these sales by seeking assistance from the equitable principles embodied in section 41 of the Transfer of Property Act, which reads as under:--- "41. Where, with the consent, express or implied, of the persons interested in immovable property, a person is the ostensible owner of such property and transfers the same for consideration, the transfer shall not be voidable on the ground that the transferor was not authorised to make it; provided that the transfer, after taking reasonable care to ascertain that the transferor had power to make the transfer, has acted in good faith. "
The above section came up for consideration before a Division Bench of this Court in Manzur Hussain Shah v. Ghulam Hussain PLD 1972 Lah. 855. Explaining the rationale behind this section, his lordship Mr. Justice A.R. Sheikh (as he then was), speaking for the Bench, said:--- "3. Section 41 of the Transfer of Property Act makes an exception to the rule that a person cannot confer a better title than he has but the presence of the following ingredients is essential for the application of the principle embodied therein---
(a) the transferor is the ostensible owner;
(b) he is so by the consent, express or implied, of the real owner;
(c) the transfer is for consideration; and
(d) the transferee has acted in good faith, taking reasonable care to ascertain that the transferor had power to transfer: "
In the case Muhammad Yamin and others v. Settlement Commissioner and others 1976 SCMR 489, Supreme Court refused to extend the principle embodied in section 41 of the Transfer of Property Act in following words:--- "As to the argument that the petitioners are bona fide purchasers for value, it is clear that no protection be afforded to them when it has been found that their vendor had no right, title or interest in the demised property. "
This rule was approved by the Supreme Court in Maryam Begum v. Shah Muhammad 1976 SCMR 342, Ghulam Shabbir v. Nur Begum PLD 1977 SC 75, Kanwal Nain v. Fateh Khan PLD 1983 SC 53 and was followed by this Court in Bilal Nasir v. Province of Punjab 1991 MLD 708.
12. Applying the foregoing principles to the facts and circumstances of this case, we have no difficulty in concluding that the Chief Land Commissioner, Punjab had no jurisdiction to validate the sales made by grantees in favour of the Society. None of the principles, embodied in section 41 of the Transfer of Property Act, were available to validate the abovementioned sales. Admittedly the grantees/sellers were not the owners of any right in the grants and they were mere grantees. The rules of natural equity embodied in section 41 of the C Transfer of Property Act, were thus not attracted to the facts and circumstances of the cases in hand. The sellers were recorded as grantees under section 15 of the Act and a slight enquiry by the Society would have put them aware about the title of the sellers. On this view, we are not able to uphold the orders passed by the Chief Land Commissioner in revision petitions filed by the Society/herein petitioner. The only question, now, left for consideration, is that on the facts and circumstances of the case, to what relief petitioner Society is entitled. It is not in dispute that the Society is a housing entity and comprises of serving and retired Government servants. It is not in contest that Society purchased the land in dispute from the grantees, made a housing scheme, obtained its sanction from the Lahore Development Authority, divided the land in dispute into residential plots and distributed the same to its members, who had constructed their houses on it. These are special features of these cases. On these features, we are of a considered opinion that the provisions of section 17 of the Act are fully attracted to these cases. The Provincial Government/Commission, under this section, is fully empowered to examine the case of the Society and transfer the property in dispute to it on the terms and conditions it deems fit after obtaining the sanction from Federal Government.
13. As a result of the aforementioned findings, we accept these petitions, declare the orders passed by Member, Federal Land Commission dated 19-6-1993 and Chief Land Commissioner, Punjab; dated 21-5-1992, to have been passed without any, lawful authority. We also declare the order passed by the Deputy Land Commissioner and Additional Land Commissioner with regard to taking the possession of land in dispute from Society as having been passed illegally and having not followed the mechanism provided under section 17 ofthe Act. We accordingly remit these cases to Punjab Land Commission with a direction to deal with the case of Society/purchasers within the framework of section 17 of the Act. There shall be no order as to costs.