' SYED ZAHID HUSSAIN, J.----Order, dated 31-5-1980 passed by the Senior Member, Federal Land Commission whereby he accepted the revision petition filed by respondent No,1 has been challenged by the petitioners, who are vendees from her. Writ Petition No,8772 of 1980 which is against the same respondents, has the similar sequence of events, the impugned order is also the same and raises a similar controversy, would also stand disposed of through this judgment.
2. Respondent No,1 was admittedly owner of land which was in excess of her permissible limit prescribed by the Land Reforms Regulation, 1972. She filed a declaration, as a result of scrutiny of which, two transaction of sale made by her through mutation Nos.106 and 149, dated 15-7-1971 to one Nazar Hussain were declared by the Federal Land Commission as void through an order, dated 7-2-1976, when a learned Member came to the conclusion that "it was a fictitious sale made to the servant of the declarant's brother and the intention was to save the land from the application of provisions of Land Reforms Regulation, 1972':. In pursuance of the said order, the Deputy Land Commissioner directed respondent No,1 to surrender land equal to 2808 P.I. Units, which was confirmed by the Land Commissioner on 26-4-1977. Accordingly respondent. No,1, the declarant submitted Form LR-XIII surrendering the land mentioned therein. In the said declaration, she included the land sold by her to the petitioners. It was entertained by the Deputy Land Commissioner. The petitioners filed an appeal before the Land Commissioner, Sargodha with the grievance that the land having already been sold by the declarant could not have been surrendered while exercising her choice and that the order of Deputy Land Commissioner was passed without hearing the petitioners. The case of respondent No,1 before the Land Commissioner was that it was the choice of the declarant as to which of the area is to be surrendered. The Land Commissioner came to the conclusion that" the declarant gave choice to surrender the area which was neither owned by her nor was in her possession on the date of submission of the Form L.R.-XIII, but the same had already been legally transferred by her to the appellants". He accordingly accepted the appeal vide order, dated 21-5-1978 and remanded the case to the Deputy Land Commissioner, Jhang for fresh orders in accordance with law. Respondent No,1 then filed a revision petition, which was dismissed by the Additional Chief Land Commissioner, Punjab, Lahore on 25-7- 1978, who also noted that the declaration submitted by the declarant also included land, which had already been sold by her. This order was not challenged any further.
3. In pursuance of remand, the Deputy Land Commissioner, Jhang observed that the" declarant filed Form LR-XIII of the area which had already been transferred by her and was neither owned nor in possession of it". He thus, directed her to file another Form, vide order, dated 14-1-1979. She filed an appeal thereagainst, which was dismissed by the Land Commissioner, Sargodha on 10-6-1979.
The revision filed by her, was dismissed by the Additional Chief Land Commissioner, Punjab, Lahore on 24-1-1980, before whom the stance of respondent No,1 was that a declarant under the law had unfettered right to exercise choice while filing the declaration. The factum transaction of sale was, however, admitted before him. A further revision was filed by respondent No,1 before the Federal Land Commissioner, which came to be decided by a Senior Member of the Federal Land Commissioner, who accepted the same on 31-5-1980. He was of the view that the "rights of a declarant to choose from his holding the area to be surrendered and the area to be retained is absolute and must prevail" and that "any complication which arises as a result of the unfettered exercise of the choice afresh are for the declarant and the parties concerned to decide between themselves or perhaps for Civil Courts to determine. The land reforms Courts would not be relevant". This petition has been filed by the vendee against this Order.
4. It is contended by the learned counsel for the petitioners that the learned Senior Member, Federal Land Commission has erred in law in taking the view that a declarant had-unfettered choice and may include even the land sold to a bona fide purchaser. It is contended that consistent view taken by all the Land Reforms Authorities has been interfered with on an untenable view of the matter. Reliance has been placed on Mst. Raj Bibi and 4 others v. Additional Chief Land Commissioner, Punjab, Lahore and 2 others reported as PLD 1975 Lahore 408.
5. Respondent No,1 despite service: is not represented. The petition has come up for hearing after due notice to her, and since it is an old matter, it has been heard ex parte.
6. The factual aspect of the case is not disputed. The transaction of sale in favour of petitioners/vendees has not been disputed by respondent No, 1 . Her stance before the Land Reforms Authorities was, however, that a declarant had an unfettered powers/choice to surrender any piece of land despite the factum of sale to a third party. It did not find favour with any of the Land Reforms Authorities, except the learned Senior Member, Federal Land Commission, who up set the concurrent view taken by them. In Raj Bibi's case the view taken by the Chief Land Commission, Punjab in Mst. Karam Illahi v. State PLD 1974 Rev.17 was quoted which was that; "Once the total holding of the declaration 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."
' It was observed by the learned Division Bench that any alienation, which was hit by paragraph No,7 of the Regulation will be void only for the purpose of Regulation but effective as between the parties to pass the interest if it had not otherwise suffered from any invalidity. The point also arose in Mst. Zuhran Khatoon and 8 others v. The Member, Federal Land Commission, Rawalpindi reported as 1985 SCM R 312. The observation made by their lordships at page 315 should clinch the issue. It was observed that:-- "The argument by the alienees/appellants that the alienor when exercising choice might include the area alienated in the surrendered land is of no force. The alienees can, if the transaction is otherwise lawful and effective resist such an act of the alienor before the Land Commission Authorities so as to compel him to surrender other than the so alienated land".
(under lined by us for emphasis)
7. The view taken in Mst. Raj Bibi's case was also followed by a Division Bench of this Court in Mian Muhammad Mumtaz v. Land Commissioner, Punjab through Additional Chief Land Commissioner, Lahore and others reported as 1990 ALD 513(2)(Lahore).
8. The construction placed on paragraphs Nos.7 and 11 of the Land Reforms Regulation in the aforesaid judgments of this Court as also of the Supreme Court of Pakistan is indeed consistent with the established prince le of construction of Statutes and is based on the general presumption that the Legislature" does not intend to take away private property rights unless the contrary is clearly indicated". Quoting Lord Atkinson Craise on Statutory Interpretation, Third Edition at Page 178, states" that there is a canon of interpretation that an intention to take away the property of a subject without giving to him legal right to compensation for the loss of it is not to be imputed to the legislature unless that intention is expressed in unequivocal terms. After all, the protection of property is generally regarded as one of the fundamental values of a liberal society".
9. In the present case, the transaction of sale had not been denied by the respondent, but an attempt was made to deprive the petitioners/vendees of the land by including alienated land into the declaration form. Thus, the rights of the said vendees were sought to be impaired and nullified.
This was clearly contrary to the intendment, object and purpose of the law as construed in the above said precedents. The learned Deputy Land Commissioner, thus, rightly directed respondent No,1 to file fresh Form by excluding the area already sold by her in favour of the petitioners. The Deputy Land Commissioner did not act illegally, his order was perfectly legal and was upheld by the Land Commissioner, Sargodha as also the Additional Chief Land Commissioner, Punjab, Lahore.
The interference by the learned Senior Member, Federal Land Commission was thus, wholly unwarranted and untenable in law. His order cannot be sustained.
10. In view of the above, order, dated 31-5-1980 passed by the learned Senior Member, Federal Land Commission is declared as without lawful ,authority and of no legal effect. The writ petition is accepted. No order as to costs.