KARAMAT NAZIR BHANDARI, J.---Syed Khadim Hussain Shah, predecessor-in-interest of respondents Nos.1 to 6 was owner of agricultural land and was hit by Land Reforms Regulation/Ordinance/Act. He filed declaration of his holdings and indicated that on 5-1-1977 he had transferred 25-Acres of land as gift to his daughter namely, respondent No,5-Mst. Amir Begum by a registered deed and also that on the same date he sold 25-Acres of land to his niece respondent No,6-Mst. Illahi Sai, also through registered deed. The dispute arose as to whether these transfers were violative of the law of land reforms and whether these 50-Acres are to be counted towards his holdings. At one stage the Deputy Land Commissioner, Bahawalnagar held that these 50-Acres will be counted towards the ownership of the declarant. On appeal, Land Commissioner, Bahawalpur Division set aside this finding and directed that this land be excluded from his ownership and remanded the case for fresh assessment. It transpires that after remand the declarant was held to be holding land in excess by 3305 produce index units which was directed to be resumed.
2. It seems subsequently the Federal Land Commission Inspection Team reported that 50-Acres of land have wrongly been excluded from the ownership of declarant inasmuch as the two transfers made by him on 5-1-1977 were void in view of section 6 of the Land Reforms Ordinance, 1977 (hereinafter referred to as "the Ordinance") enforced with effect from 5-1-1977. This report was forwarded by the Land Commissioner to the Chief Land Commissioner, Punjab who proceeded to register the same as suo motu revision and issued notices to the declarant as well as transferees.
After hearing the parties, vide his order dated 30-7-1985, the Chief Land Commissioner, Punjab set aside the order of the Land Commissioner dated 1-12-1977 and that of the Deputy Land Commissioner dated 26-2-1980 passed on remand and directed that two transfers in favour of respondents Nos.5 and 6 being void, the transferred land be counted towards ownership of declarant. This order of the Chief Land Commissioner was challenged by the respondents in the Lahore High Court, Bahawalpur Bench by filing Writ Petition No,609/1987-BWP. This petition was allowed by the High Court vide judgment dated 4-4-1995, which is impugned herein.
3. Learned Judges of the Division Bench of the High Court followed their earlier decision reported as Muhammad Yusuf Ali Shah v. Federal Land Commission, Government of Pakistan; Rawalpindi and 2 others (1995 CLC 369) to hold that the Chief Land Commissioner could not have acted mechanically on the report of the Inspection Team of Land Commission. The learned Judges took the view that the Chief Land Commissioner ought to have applied his own independent mind. They also noticed that by a judgment of the Shariat Appellate Bench of this Court commonly known as "Qazalbash Waqf" case and reported as (PLD 1990 SC 99), the provisions of Land Reforms Act placing upper ceiling on ownership, have been declared un-Islamic and as such no land-could be resumed.
4. In support of this appeal, Mr.Fauzi Zafar, learned Assistant Advocate-General, Punjab has contended that the judgment of the High Court is vitiated as it does not take note of the effect of section 6 of the Land Reforms Ordinance, 1977. According to him, by application of this provision the two transactions made by the declarant on 5-1-1977 automatically stood nullified and the land reverted to the declarant. He has argued that the order of Chief Land Commissioner, Punjab is correct. He has also urged that the Chief Land Commissioner has applied his independent mind and has not acted mechanically on the report of the Inspection Team.
5. Mr. Gulzarin Kiyani, learned Advocate Supreme Court appearing on behalf of respondents Nos.1 to 6 has supported the impugned judgment by re-affirming reliance on the judgment reported as 1995 CLC 369, the judgment followed by the learned Judges of the High Court in this case. He has also pointed out that against the reported judgment not only the petition for leave to appeal but even the review applications have been dismissed by this Court. He has urged that the order of the Land Commissioner dated 1-12-1977 (holding in favour of validity of transfers) became final and could not have been set aside on the report of the Inspection Team. Finally, learned counsel submitted that in any case in view of the judgment in Qazalbash Waqf s case, the exercise has become irrelevant as no land can now be resumed.
6. Mr. Kiyani admitted that effect of section 6 of the Ordinance has not been considered by the High Court in its earlier reported judgment as well as in the impugned judgment. He also admitted that the provision of section 6 of the Ordinance was not brought to the notice of this Court while deciding Civil Petition as well as Review Petition against the reported judgment. Section 6 reads: "Certain transfers void.---(1) The transfer of any land, and the creation of any right or interest in, or encumbrance on any land, made in any manner whatsoever in respect of any area, on or after the commencement of this Ordinance by any person holding immediately before that date an area exceeding his entitlement under section 3, shall be and shall be deemed always to have been void, and the land so transferred or encumbered shall be deemed to have been owned or possessed, as the case may be, by the person by whom it was owned or possessed immediately before that date."
It is, therefore, clear that in this case the transactions of gift and sale made on 5-1-1977 were rendered void by operation of law. It does not seem that any formal declaration of invalidity of the transfers was required. In any case in the earlier round the Deputy Land Commissioner's order dated 28-9-1977 had declared these two transactions as void. With respect, therefore, neither the reported judgment nor decision of this Court in the petition for leave to appeal, helps the respondents
7. Mr.Kiyani has not cited any provision in support of the contention that the suo motu power of revision could not have been exercised on the report of the Inspection Commission. It is however, correct that the competent authority has to exercise its independent mind and determine the question in accordance with law after hearing the affected parties. In this case this criteria has been fully met. The perusal of order of the Chief Land Commissioner, Punjab shows that the officer has applied his mind to facts and circumstances of the case and it is incorrect and unjust to hold that he has simply followed the report of the Inspection Commission. Even on this point, the learned Judges of the High Court seem to have been impressed by the earlier reported judgment, the facts of which are different.
8. The law laid down in "Qazalbash Waqf's" case does not help the respondents inasmuch as the present case has to be dealt with in accordance with law prevailing at the time of filing of declaration viz: Land Reforms Act, 1977.
9. For the above reasons, we accept this appeal; set aside the impugned judgment dated 4-4-1995 passed in Writ Petition No,609 of 1987/BWP by the Lahore High Court, Bahawalpur Bench and recall the writ issued by it. As a result, the order of Chief Land Commissioner, Punjab dated 30-7-1985 will hold the field.
Parties are left to bear their own costs.