' K. M. A. SAMADANI, J.-Petitioner No, 1 Muhammad Hayat Ullah Khan is the father of petitioners Nos.
2, 3 and 4 and the grand father of petitioners Nos. 5, 6 and 7. All the seven petitioners are land owners and their land is situate in various villages of Tehsil Eisakhel in Mianwali District and in village Jalpana of Tehsil Shahpur in Sargodha District.
2. As a declarant under the Land Reforms Regulation, petitioner No, 1 sought to interchange part of his land under the provisions of sub-para. (2) of para. 11 of the Regulation with petitioners Nos. 2 to 7 before surrendering land in excess of the permissible area. The scheme of exchange proposed by petitioner No, 1 was rejected by the Deputy Land Commissioner concerned on the ground that it did not result in the consolidation of the holding of the declarant i,e, petitioner No, 1 inasmuch as the area which the declarant wanted to obtain in Mianwali District in exchange was situate in 8 different villages of Mianwali divided up in several blocks. The appeal preferred to the Land Commissioner was also dismissed. The revision preferred to the Chief Land Commission, Punjab met with the same fate and thus the matter went up to the Federal Land Commission. The learned Member, Federal land Commission who heard the revision petition against the order of the Additional Chief Land Commissioner disallowed the exchange as did the officers of the Provincial Land Commission, but on different grounds altogether. He noticed that the land situate in village Jalpana, Tehsil, Shahpur, which the declarant wanted to exchange with the land in Mianwali consisted of two blocks. One block comprised 967 kanals 5 marks and out of that an area measuring 726 kanals 19 marlas was tenanted and the remainder was under self-cultivation.
Therefore, with regard to this block the learned Member, Federal Land Commission decided that the exchange of 726 kanlas 19 marlas was out of question because that area was tenanted and with regard to the remaining area measuring 240 kanals 6 marlas he observed that it could be exchanged provided the other conditions prescribed under the law were satisfied. But since there was no land adjacent to the land under self-cultivation which was to be retained, the exchange of 240 kanals and 6 mar/as of land would not result in consolidation. Thus the exchange proposed in respect of this block was turned down. By a similar reasoning the exchange proposed in respect of the second block was also refused.
3. From the orders of the Provincial Land Commission and the Federal Land Commission it appears that there exists some misconception in the minds of the authorities concerned with regard to the scope and spirit of sub-para. (2) of para. 11 of the Land Reforms Regulation, 1972. For facility of reference sub-para. (2) of paragraph 11 is reproduced below :- "(2) If a person owns or possesses an area of land exceeding the area permitted under this part, he may be allowed to interchange the whole or any part of such area with an area owned or possessed by any member of his family, for the purposes of consolidation on the basis of equality of the produce index value of the area proposed to be interchanged.
' Explanation.-For the purposes of this sub-paragraph, "family" shall mean wife, husband, parents, children, brothers and sisters."
From the text of the provisions reproduced above it is clear that whether the land proposed to be exchanged is tenanted or untenanted has no bearing on the question of the validity of the exchange. This consideration appears to have been introduced on the authority of Nawabzada Abdul Ghafoor Khan and others v. Additional Chief Land Commissioner and another" (1) decided by the Federal Land Commission on the 11th of June 1974. In that case it was held as follows :- "As the resumed land has to be given to tenants under para. 18 of Martial Law Regulation 115, provisions of para. 11 are subject to the provisions of para.
18. Para. 11(2) of Martial Law Regulation 115 is permissive while para. 18 is mandatory. It is thus clear that while allowing the exchange the rights of the tenants which accrue to them under para. 18 of Martial Law Regulation 115 have to be preserved. It, therefore, follows that only that portion of resumed land can be utilized for excharee which is untenanted."
But we do not find it possible to subscribe to this view. It is to be noted that under paragraph 18 of the Regulation no rights of ownership accrue to any tenant in any piece of land until it has been finally resumed and come to vest in the Government. The choice to be exercised by the landlord as to the area to be retained by him under sub-para. (1) or with regard to the area to be exchanged under sub-para. (2) of para. 11 must precede the resumption of land. Therefore, it is not right to limit the scope of paragraph 11 of the Regulation on the basis of the rights which are likely to accrue to certain tenants under paragraph 18. The fact that the Land Reforms Regulation
(1) PLD 1975 Rev. 38 is an expropriatory law should not be lost sight of. Every concession permissible under the Regulation must be allowed to the land owner without B demur. It is not open to the Land Commission authorities to curtail the scope of concessions extended to the land owners by the Legislature. Neither sub-para. (I) nor sub-para. (2) of para. 11 makes any distinction between the tenanted and the untenanted areas in the matter of choice or exchange of area to be made by a declarant land owner. The only conditions laid down in sub-para. (2) are that the exchange should be on the basis of equality of the produce index value and the purpose of exchange should be consolidation. As long as these two conditions are satisfied, there can be no valid objection to an exchange proposed by a declarant with members of his family.
4. The Land Commission authorities appear to be under the impression that consolidation means consolidation of the holding of the declarant alone and not of the family. This impression, in our opinion, is not correct. If the idea were only to let the declarant consolidate his own land he would be allowed to interchange land with any person. The very fact that interchange of land has been allowed only with a member of his family I e. With a brother, sister, child, parent, husband or wife, clearly indicates that the, intent of the Legislature is to allow the declarant and his relatives falling under the above categories to consolidate the family holding. This, incidentally, is also in the interest of efficient agriculture.
' Therefore, what the Land Commission authorities should keep in view while scrutinizing a scheme of interchange of land under sub-para. (2) of para. 11 is whether the proposed scheme, if allowed, is a step in the direction of the consolidation of the family holding as a whole. It is obvious that "perfect consolidation" is not always possible. But any scheme which takes the family holding, of which of course the holding of the declarant is also a part, closer to the state of perfect consolidation and away from the existing state of fragmentation should be regarded as a scheme serving the purpose of consolidation within the meaning of sub-para. (2) of pata.
11.
' In the present case the Provincial Land Commission authorities declined to allow the scheme proposed by the declarant on the ground that it did not effect consolidation of the declarant's holding without considering as to whether it would result in the consolidation of the family holding as a whole ; and the learned Member, Federal Land Commission proceeded on the assumption that the exchange of tenanted areas of the declarant's land was not permissible at all. Both these considerations are extraneous to the-latter and the spirit of sub-para. (2) of para. 11 of the Regulation and as such against the expressed intent of the Legislature. This is a clear ease of failure or refusal to exercise jurisdiction on extraneous considerations.
5. We, therefore, hold the impugned orders to be without lawful Authority and of no legal effect. The Land Commission authorities shall therefore, have to reconsider the proposed scheme of interchange in the light of the observations made in this judgment.
6. The writ petition is accordingly allowed with no order as to costs.
7. After the conclusion of arguments in this case and before the pronouncement of judgment, two persons Raja and Bhai Khan prayed through their application Criminal Miscella eons No, 2794 of 1976 to be impleaded as respondents claiming themselves to be tenants who would be affected by the interchange of land proposed by the petitioners. However, without impleading them as respondents we called upon their learned counsel Malik Allah Yar Khan Advocate, to address his arguments on the merits of the case as such a course is permissible under paragraph 4 of Part II of Chapter 1V-J of the High Court Rules & Orders Volume V. He opposed the writ petition on the ground that excnange of tenanted land was not envisaged under paragraph 11 of the Land Reforms Regulation.
8. We have already dealt with this question above and the decision is against the petitioners.
Accordingly C. M. 2794 of 1976 fails.