Ghulam Ali Shah and 4 others have prayed for grant of following relief in this Constitution petition: ."
"In resuming the foregoing actual, factual and legal submission, it is, therefore, respectfully prayed that the impugned order dated 4-6-1998 passed by respondent No,1 may kindly be declared without lawful authority and jurisdiction and be also quashed being void, ab initio and of no legal effect. .
It is further prayed that any other appropriate relief deemed to be fit may also be awarded for the safe administration of justice and equity."
2. The facts, briefly stated, giving rise to this petition are hardly in dispute. These are briefly as follows:-- ' Ghulam Ali Shah/herein petitioner No,1 was owner of agricultural land in various revenue estates falling in village Lateefpur in Tehsil and District Jhang. Before the advent of Martial Law Regulation, 1972, he alienated some portions of his holdings to various owners through a number of mutations with which we are not concerned. Suffice it to note that on 18-1-1969, he alienated by means of sale, agricultural land measuring 222 Kanals and 3 Marlas to Muhammad Yar, Muhammad Zarin and Muhammad Mumtaz all sons of Samand herein respondents. This mutation was incorporated in the mutation register at No,78. With the incoming of M.L.R. 1972, he filed a declaration, wherein all the transactions, including the afore-noted transaction were mentioned. The Deputy Land Commissioner scrutinized all the afore-noted transactions and found them valid. He accordingly sent his findings to the Land Commissioner for confirmation.
Pursuant to that the Land Commissioner, vide order dated 5-7-1972 confirmed his findings except non-sanctioned sale mutations through Nos.67, 77, 79 and 78. This finding was recorded in the following terms: "I have perused the record and heard the declarant. I am satisfied that the transactions made through Mutation Nos.294, 302, 323m 335, 341, 349, 352, 356, 351, 272, 274, 275 and 262 mentioned above, are bona fide and I, therefore, declare these transactions as valid. The transactions made through Mutations Nos.67, 77, 79 and 78 of village Latifpur are hit by para. 25 of the Repealed Land Reforms Regulations, 1959, because the total holding of the declarant in this village was 477 Kanals and 5 Marlas and further disposal through the first transactions reduced his holding to less than an economic unit. I, therefore, declare these transactions void for the purpose of the land reform. The Deputy Land Commissioner, Jhang should determine the holding of the declarant accordingly . "
3. This was not the end of the matter. Although the petitioners did not challenge the above finding, yet the vendees/respondents entered the field and filed appeals which were dismissed by the Additional Chief Land Commissioner Punjab, Lahore on 11-12-1983. The success eluded the aforesaid respondents/ vendees upto the Chairman Federal Land Commissioner. Feeling uncontested that vendees petitioners preferred Writ Petition No,4624 of 1984, which was allowed by a learned Division Bench of this Court on 31-10-1995 in the following terms:- "As a result of what has been stated above, this petition is allowed, the order dated 29-3-1984 of the Member Federal Land Commission, Rawalpindi is declared to be without legal authority and of no legal effect with the result that the revisions filed by the petitioner against the order of the Additional Land Commissioner, dated 11-12-1983 shall be deemed to be pending before the Federal Land Commission and shall be decided afresh after hearing the parties."
' In compliance with the aforesaid order, the learned Chairman Federal Land Commission heard both the parties and found that the disputed transaction incorporated as Mutation No,78 was valid and subject to no exception. This order was passed on 4-6-1998. This is how, this petition has come to this Court.
4. Learned counsel for the petitioners relied upon the contents of order passed by the Land Commissioner, Sargodha to suggest that at the relevant time, the petitioner No,1 was owner of 477 Kanals and 5 Marlas and, therefore, any observation made by him reduced his holding to less than economic holding and so the disputed transaction was in patent conflict with para. No,25 of M.L.R.
1972. On the strength of above contention, it was suggested that the-sale made by him in favour of the vendees, was wholly void and so was of no legal consequence in the eye of law. Continuing the learned counsel contended that the aforesaid mutation be set aside and the land alienated by petitioner be directed to be reverted to him.
5. We have heard the learned counsel for the petitioners at considerable length, attended to his sole contention very carefully. We do not find any merit in it on both equitable and legal grounds.
Firstly, it is not in dispute that Ghulam Ali Shah had made the sale of his holding in favour of the vendees named above, received its consideration, delivered its possession to them and so had become denuded of his title. The petitioners now want to regain title on the technical plea by invocation of para. 24 of the Martial Law Regulation No,1972. This is pure and simple of plan of perniciousness. A bare reading of para. 24 clearly indicates that this provision was embodied in the M.L.R. 1972 to determine the entitlement of the petitioners to retain agricultural land within permissible limit as ordained by that law. This provision has no concern with the nature or validity of transaction inter se between the parties. If any authority is needed, reference may be made to Raj Bibi and another v. Additional Chief Land Commissioner and State PLD 1975 Lah.
408. Dealing with this question, his Lordship Mr. Justice K.M. A. Samdani (as he then was) said:-- "Para. 7 Therefore, the question for consideration is whether a transfer of land declared to be void under paragraph 7(1) (a) of the Regulation or held to be void by a Land Commission under paragraph 7(1)(b), is void for all purposes even as between the parties to the transaction or only for the purposes of determination by the Land Commission of the extent of the holding of the declarant. A similar question arose as long ago as 1940 in Britain in the case Phillpotts v. Phillpotts (84 Revised Report, 460). The facts of that case were that in Brition no man was entitled in those days, to vote at elections unless he owned property. So, the Parliament took care to enact a law declaring a fraudulent conveyance made for the mere purpose of conferring a vote as null and void. But when the scope of that law came under judicial scrutiny, it was held that "such a conveyance as stipulated thereunder was void only to the extent of preventing the right of voting from being acquired but was valid and effectual as between the parties to pass the interest".
' The case of the alienations, hit by paragraph 7(1) of the Land Reforms Regulation; is parallel to the case cited above. Therefore, there is no reason why the alienations which are hit either by clause
(1) or clause (b) of sub-para. (1) of paragraph 7 should not be held to be void only for the purpose of the Regulation but valid and effective as between the parties to pass the interest if they do not otherwise suffer from any invalidity. Para. 8 ' In fact we are of the opinion that this is also the intention of the' author of the Regulation which has been clearly expressed in sub-paragraph (3) paragraph 7 which reads as follows:- ' Nothing in sub-paragraph (1) shall apply to any transfer of land or the creation of any interest or right or encumbrance or any land made by a person who held on 20th December, 1971, land in excess of the possible limits under paragraph 8, after he has surrendered to Government, in accordance with the provisions of this Regulation, the land in excess of such limits'.
' But unfortunately this provisions of the Regulation appears to have been misconstrued and held to have application only to transactions of transfer etc. Made by a declarant after he has surrendered the excess land. In recent case, however, reported as Mst. Karam Elahi v. State PLJ 1974 Tr.C. (Revenue) 170, the learned Chief Commissioner, Punjab, observed as under:-- "Once the total holding of the declarant inclusive of the area of the mutation declared void has been worked out and he has surrendered to the Government the area in excess of the permissible ceiling, it will be in order for the declarant to honour the alienation, already made and consider himself divested of the alienated area from out of his retained ceiling and the retained land vide sub-para. (3) of para. 7 of M.L.R.
115.
' This is an indication of the fact that the Punjab Land Commission is also of the view that the alienation held to be void under sub-para. (1) of para. 7 may remain valid and effective as between the parties. But the learned counsel for the petitioners is not satisfied with the manner in which the learned Chief Land Commissioner has made this observation; and the learned Assistant Advocate- General also contends that unless the alien or, whose alienation has been hit by sub-para. (1) re- alienates the land formally in order to honour his commitment, the alienation will remain void.
' It is, therefore, necessary that we remove the doubt regarding the implications of sub-para. (3) of paragraph 7 of the Regulation and express in clear terms, in order to avoid uncertainty, how the said paragraph should be construed. The express "after he has surrendered to Government the land in excess of such limits" in paragraph 7(3) of the Regulation does not mean that the reference therein only to the transactions to be entered into after the excess land has been surrendered to the Government. It, in fact, means that once the excess land has been determined, after applying the provisions of sub-para. (1) of paragraph 7 of the Regulation and resumed, the said paragraph will cease to have effect not only prospectively but also retrospectively except in respect of the land which has been surrendered. For example, in the present case the declarant had 13178 units of land to start with but she claims to have alienated 9067 units out of it. This alienation has been held to be void for the purposes of the Land Reforms Regulation with the result that she has been held liable to surrender 1178 units. But since she considers herself to be bound by the alienations made by her, she regards herself, as the owner of only 4111 units. If, therefore, she chooses to surrender 1178, units out of 4111 units of land which, according to her, still belongs to her, the purpose of the Regulation will be served, and the alienations made by the declarant, will remain intact. There is no reason why in a case like this the alienation should be considered to be void for any purpose other than that of determining the extent of the declarant's holding on the relevant date. However, should the declarant choose to surrender excess units wholly or partly out of the land alienated by her, as it is permissible under the Regulations, the alienation will become void by operation of law, to the extent of the surrendered land and to that extent, the effected alliance may claim compensation from alienor. But again there is no reason why the alienation in operation of law to the extent of the surrendered land and to that extent the affected alience may claim compensation from the alienor. But again there is no reason why the alienations in respect of the balance of the alienated land should be held to be void for all purposes. It is to be noted that this construction has the advantage of saving the persons not otherwise affected by the Regulation but involved in transactions hit by paragraph 7(1) Regulation in any manner. It will also save the declarant from going through the exercise of re-transferring land or recreating right or interest in or encumbrance on, land in order to honour this commitments which although held void under paragraph 7(1) he has been able to protest by a considerate exercise of his right of selection of land for the purpose of retention.
5-A. The rule enunciated, in the afore-noted case, is fully applicable to the facts and circumstances of the case in hand. It is not pleaded that land reform authorities had failed to scrutinize the above transaction of sale with the parameters laid down in law. His only plea is that the aforesaid transaction was violative of paragraph 24 of the Land Reforms Regulation, 1972. This plea is 9 untenable and cannot help him recover land already sold by him. It will be noted that the petitioner No,1 has challenged only Mutation No,78 which was in favour of respondents Nos.4 to 6 and has not assailed other Mutations Nos.67, 77, and 79, although these were also voidable in assailed order. The obvious reason being that all these exchange mutations were in favour of his sons. In other words the petitioner No,1 challenged only part of the order of Chairman Federal Land Commission.
6. There is yet another aspect of the case. The, purpose of Constitutional jurisdiction is to foster justice between the parties and not to help those persons C who come to Court with unclean hand.
If any authority is needed, reference may be made to Haji Noor Muhammad v. Ghulam Masih Gill PLD 1965 (W.P.) RI 1.
7. Lastly it is to be seen that the submissions made in the petition are more in nature of grounds taken in a regular appeal. It is to be understood that while exercising Constitutional jurisdiction, this Court does not act as a Court of appeal to correct legal or factual irregularities committed by the lower forums. The findings of respondent No,1 that transaction in question was bona fide, cannot be disturbed as it involves not only appreciation of evidence but also many other attending facts and circumstances. In re: The Commissioner and another v. Mian Sher Muhammad (1972 SCM R 395), it was observed that ordinarily the High Court is not entitled to investigate the disputed question of fact in exercise of its writ jurisdiction. It is also an established rule that an interference with the order recorded by a Tribunal of competent jurisdiction is not made by this Court in its Constitutional jurisdiction, mere for the reason that it holds a view different from the conclusion drawn by the Tribunal. The Supreme Court in re: Muhammad Hussain Munir v. Sikandar and others PLD 1974 SC 139 approved the adoption of such approach.
8. This being the position, we do not find any merit in this petition and hold that the order passed by the learned Chairman, Federal Land Commission/respondent is eminently correct and does not