MUNIR A. SHEIKH, J.- Leave is sought against the judgment dated 9.5.2000 of the Lahore High Court through which constitutional petition filed by the petitioners against the order of the Chairman, Federal Land Commission dated 5.8.1999 has been dismissed.
2. Land in dispute being surrendered land under MLR 115 by their previous owners being in excess of their maximum ceiling fixed under the said Regulation was allotted to Fateh Muhammad and Yousaf jointly to the extent of 40 kanals. Fateh Muhammad was also independently allotted land measuring 23 kanals 8 marlas and Muhammad Hussain son of Fateh Muhammad was allotted independently land measuring 23 kanals 8 marlas under the said Regulation on 14.12.19973. On 12.8.1998, Muhammad Iqbal respondent No. 3 and Muhammad Riaz respondent No. 2 herein made an application to Chairman, Federal. Land Commission that the said allotment had been obtained through fraud and misrepresentation, for the said allottees were not in cultivating possession of the land during the relevant harvests as tenants, therefore, they being in cultivating possession of the same as tenants were entitled to its transfer/allotment.
3. The Deputy Land Commission while passing the allotment order in favour of Fateh Muhammad and Yousaf regarding and comprising khasra Nos. 35/1, 18, 23, 36/21, 22 had observed that they were recorded in cultivating possession of the said khasra numbers and that they were, recorded in khasra girdawari was lessees during the crucial harvests but the same was based on misreading of record as land comprising these khasra numbers had been shown in cultivating possession of Allah Ditta father of the petitioners before the Chairman, therefore, allotment to Fateh Muhammad and Yousaf of this land was against law. As regards allotment of land to Fateh Muhammad comprising khasra Nos. 35/19, 22 and 36/25, it was found that. Deputy. Land Commission held, that land comprising khasra No. 35, 12, 13 was in possession of Fateh Muhammad but he was recorded as lessee and not tenant. Since according to definition of the expression "tenant" given in sub-para 13 of para-2 of the said Regulations, the lessee had been expressly excluded from the definition of tenant and the excess surrendered land could only be allotted to tenants, therefore, the allotment of the said land in favour of Fateh Muhammad and Muhammad Hussain was also not valid.
4. We have observed that an objection as raised to the jurisdiction of the Federal Land Commission to take cognizance of the case under provisions of Para 29 of the MLR 115 on the ground that no case which had been decided before 30.11.1976 could be reopened under suo motu power. The same arguments was raised before the learned Judge of the High Court in the writ petition but has not been answered either by the Chairman Federal Land Commission or the learned Judge of the High Court.
5. Ch. Khan Muhammad Bajwa, learned counsel for the petitioner submitted that even the definition of expression "tenant" excluding therefrom a lessee relied upon by the Chairman, Federal Land Commission was added long after 14.12.1973 after the allotment in question was made, therefore, the same could not be applied retrospectively to deprive the petitioners of their lawful allotment and that revenue record was also misread Pr. Holding that Fateh Muhammad and Yousaf were not shown in cultivating possession of land allotted to them.
6. Learned counsel for the respondents submitted that the case could be reopened under suo motu power vested in the Chairman, Federal Land Commission Under para 27 of Land Reforms Act, 1977 which provides that any case decided by Land Commission could be summoned and legality of the same gone into by the Federal Government and the Federal Government had delegated the said power to Chairman, Federal Land Commission and the said Act being overriding law did not provide any date after which the case could not be reopened. He submitted that revenue record has not been misread. However, he was unable to explain the inordinate delay in making the application on 12.8.1998.
7. Leave is granted to consider the above mentioned contentions raised by the learned counsel for both the parties, in order to determine whether the Chairman Federal Land Commission was vested with the jurisdiction to entertain the plea of respondents and reopen the case and also to consider whether the revenue record in this case has been misread or not.
8. The private respondents are admittedly in possession of land after its allotment to them. Status quo as regards their possession shall be maintained till the disposal of the appeal.