' FAQIR MUHAMMAD KHOKHAR, J.---The respondent No.6 was declarant under the Land Reforms Regulation (MLR 115) of 1972, who had gifted certain portion of his land through Mutation No.298, dated 9-8-1969 to his brother Zaigham Hayat, respondent No.7 and another portion to his mother Dure-e-Nazim Shahwar deceased and to a stranger Haji Mehraj Din respondent No.8 by Mutation No.312 sanctioned on 13-5-1970. Out of these transactions the gift in favour of respondents No.7 and 8 was held to be invalid whereas the gift of the land in favour of Mst. Dure-e-Nazim Shahwar, the mother of respondent N.6, as valid, by the Land Commission Authorities.
2. In the meantime the respondents Nos. 3 to 5 purchased the land from the said donees through Mutations Nos.348 and 364. Dated 11-3-1971 and 28-2-1972 respectively. The respondent No.6 filed a declaration before the Land Reforms Authorities under MLR 115 declaring himself to be the owner of the entire land measuring 10 squares equal to 28878 P.I. Units. He was, therefore, required to surrender the excess land to the Land Reforms Authorities for resumption and disposal in terms of paragraph 18 of the said Regulation. Therefore, the respondent No.6 exercised the choice of the surrender of the excess land in dispute which had been transferred to the respondents Nos.3 to 5.
The Land Reforms Authorities passed orders for resumption and further allotment of the excess land under paragraph 18 ibid to the petitioners as landless tenants. Therefore, the respondents Nos.3 to 5 filed Writ Petition No.1763 of 1978 on the ground, inter alia, that in view of the other available excess land for resumption, the one which had already been alienated to them by way of sale could not be surrendered. The writ petition of respondents Nos.3 to 5 was accepted by the Lahore High Court whereby it was directed that respondent No.6 would be called upon to surrender the land other than the one already alienated to respondents Nos.3 to 5, and if any land was still available, the same would be transferred to the present petitioners who were claiming to be landless tenants.
3. The learned counsel for the petitioners argued that the order, dated 3-4-1976 passed by the Federal Land Commission under MLR 115 declaring the invalidity of the gifts, by the respondent No.6 in favour of his brother and a stranger, had attained finality which could not be set aside by the Lahore High Court in the exercise of its Constitutional jurisdiction. The transactions of alienation by way of sale in favour of respondents Nos.3 to 5 could not be treated as valid. The resumed land having been allotted, by the Land Reforms Authorities, in favour of the petitioners being landless tenants, could not have been withdrawn from them. The declarant had validly exercised his choice for the surrender and resumption of land which had been sold to the respondents Nos.3 to 5. In these circumstances, it was argued, the declarant who had a freedom of choice to surrender any excess land of his holding could not be compelled to surrender a particular land already allotted to, the petitioners for resumption.
4. On the other hand, the learned counsel for the respondents Nos.3 to 5 argued that the gift of the part of property by the respondent No.6 in favour of his mother had been held- to be valid.
Therefore the declarant did not have any absolute right in the matter of surrender of the excess land thereby adversely affecting the rights of the respondents Nos.3 to 5 in whose favour the land already stood alienated by sale by the mother of declarant.
5. We have heard the learned counsel for the parties at length. The learned counsel for the petitioners has not been able to persuade us as to how the determination by the Land Reforms Authorities under a sub-Constitutional legislation was immune from the scrutiny of the High Court in the exercise of Constitutional jurisdiction. The rights of the respondents Nos.3 to 5 as a result of prior alienation of the property in dispute had already been created which could not be disturbed at the sweet will of the declarant by the exercise of choice to surrender the alienated land. The respondents Nos.3 to 5 being vendees were within their right to invoke the Constitutional jurisdiction of the High Court for a direction for the surrender of the land other than the alienated one to preserve their vested rights in the land in dispute. Reference may usefully be made to the case of Mst. Zohran Khatoon v. Member, Federal Land Commission, Rawalpindi (1985 SCM R 312).
Needless to say that the petitioners landless tenants could be considered for the grant of the land in accordance with law, and subject to their eligibility, out of the other available excess land surrendered for resumption and disposal. Therefore, the petitioners could not claim any priority of allotment qua the vested rights of respondents Nos.3 to 5. This was necessary for preserving and safeguarding the rights created as a result of transaction of alienation of sale of land which had been found to be valid as between the private parties. In this case a transaction of gift of a part of disputed land made by the respondent No.6 to his mother Mst. Dure-e-Nazim Shahwar deceased was held by the Land Reforms Authorities to be valid which she further sold to the respondents No.3 to 5.
6. The impugned judgment doing the substantial justice between the parties does not call for any interference by this Court. This is not a fit case for grant of leave to appeal.
7. For the foregoing reasons, we do not find any merit in this petition and the same is dismissed accordingly. No order as to costs.