M. Javed Buttar, J.--This Constitutional petition is directed against the judgments dated 28.5.1979, passed by Senior Member, Federal Land Commission, and dated 25.6.1975, passed by Chief Land Commissioner, Punjab. The issue is validity of Gift Mutations Nos, 444 and 54 pertaining to villages Darapur and Shah Kameer, Tehsil Jhelum, in favour of the petitioners, who are sisters of declarant/Respondent No, 3, Iqbal Mehdi Khan.
2. The relevant facts are that Respondent No, 3, Mr. Iqbal Mehdi Khan son of Afzaal Mehdi Khan, was declarant under MLR 115 of 1972. He gifted his lands measuring 1045 kanals 13 marlas and 263 kanals 11 marlas in villages Darapur and Shah Kameer, Tehsil Jhelum, in favour of his sisters/the petitioners, vide Mutations Nos, 444 and 54, 'both entered on 30.12.1970 and sanctioned on 15.4.1971.
At the time of the gift, donees/petitioners were minors and unmarried. The aforesaid transactions alongwith certain other transactions came up for scrutiny under Para 7(1)(b) of MLR 115 of 1972 before the Land Commissioner, Rawalpindi Division, who, in the first instance, vide his order dated 7.6.1972, declared the aforesaid two gift transactions as void, under para 7(1)(b) of the above Regulation but subsequently, vide his order dated 23.9.1972, he reviewed his previous order and declared the abovesaid two gift transactions as valid. The Inspection Team of Federal Land Commission scrutinized the .case of the declarant/Respondent No, 3 and vide order dated 17.5.1973 held that the aforesaid two gift transactions had been wrongly declared to be valid under para 7(1)
(b) of the Regulation by the Land Commissioner, Rawalpindi, and observed that mutation should be reviewed. Consequently, the Chief Land Commissioner, Punjab, in exercise of the powers conferred under Rule 13 of the Punjab Land Reforms Rules, 1972, took:up the case in suo moto revision and passed the impugned order dated 25.6.1975, whereby he held that the aforesaid two gift transactions were void, on the ground that the donees/petitioners had received their due share of inheritance aland left by their father Afzaal Mehdi Khan, hence the exemption as envisaged in item(ii) of the second proviso to Para 7(1)(b) of the Regulation, was not applicable. He, while doing so, declared the third transfer (not a subject-matter of the present petition) also as void. The third transfer of gift by the declarant to the petitioners is vide Mutation No, 1624 of village Virachan Wala.
The history of this transfer is that grandmother of the declarant had, vide Mutation No, 1446 attested on 28.6.1963, gifted the area involved in Mutation No, 1624 and other area to the declarant and donees sisters. The attestation of the mutation took place in several installments over a period.
At the time of final attestation, due to some mistake, name of the declarant alone was incorporated as donee. The donees sisters/petitioners deprived of their share of the gifted land, thus sought their remedy through a suit in a Civil Court, brought on 1.4.1971, ending in a consent decree dated 15.4.1971. It was to give effect to this decree that the third transfer Mutation No, 1624 was entered and attested on 29.9.1971, well before the crucial date.
3. The declarant-respondent No, 3 assailed the judgment dated 25.6.1975, passed by Chief Land Commissioner, Punjab, through a regular revision petition under Para 29 of MLR 115. The Federal Land Commission, vide its judgment dated 28.5.1979, upheld the order dated 25.6.1975 of the Chief Land Commissioner, Punjab, to the extent it pertained to the aforementioned disputed two transactions of gift evidenced through Mutations Nos, 444 and 54 pertaining to villages Darapur and Shah Kameer, both entered on 30.12.1970 and attested on 15.4.1971. These two gift transactions, therefore, remained declared as void. The order of the Chief Land Commissioner, Punjab, to the extent of declaring the aforesaid third transfer also (Mutation No, 1624-Village Virachan Wala) as void was, however, set aside and it was held that this gift was property made vide Mutation No, 1624 in favour of the petitioners and that this mutation shall be treated as valid as it was culmination of a transaction already made in the year 1963 and the subsequent proceedings before the Civil Court were by way of rectification only,
4. The petitioners, through the present Constitutional petition, have assailed the judgments dated 25.6.1975 of Chief Land Commissioner, Punjab, Lahore, and dated 25.5.1979 of Federal Land Commission, only to the extent of two transfers of gift, evidenced through Mutations Nos, 444 & 54, pertaining to villages Dara Pur and Shah Kameer. There is no controversy regarding the third transfer evidenced through Mutation No, 1624 pertaining to village Virachan Wala as the said mutation has been declared and treated as valid by the Federal Land Commission.
5. We have heard the learned counsel for the petitioners and have also seen the relevant record including the report and parawise comments furnished by Respondent No, 2/Chief Land Commissioner, Punjab. Nobody has turned lip for respondents, who are proceeded ex-parte.
6. It is submitted by the learned counsel for the petitioners that the petitioners are donees of the land in question, they are in its possession since beginning, the Land Commissioner, Rawalpindi, vide his judgment dated 23.9.1972, had correctly declared the gift transactions as valid, the Inspection Team of the Federal Land Commission while scrutinizing the case of the declarant/Respondent No, 3 and while holding vide its order dated 17.5:1973 that the abovesaid two gift transactions had been wrongly declared to be valid, did not grant any opportunity of hearing either to the declarant or to the petitioners, that thereafter while exercising the suo moto revisional powers, the Chief Land Commissioner, Punjab, did not grant any opportunity of hearing to the petitioners and these orders being violative of principle of natural justice of audi-alteram partem are, therefore, illegal, void ab initio and liable to be set aside. It has also been argued that the proceedings pending before Respondent No, 1/Federal Land Commission under the revision of Respondent No, 3 stood abated under Section 25 of the Land Reforms Act, 1977 (II of 1977), on the commencement of the Act i,e, 9.1.1977 (the date of publication of Gazette Notification) and, therefore, the Federal Land Commission acted illegally in passing the impugned judgment dated 28.5.1979. Reliance in this regard has been placed on Federal Land Commission through its Senior Member, Islamabad vs. Sher Muhamamd and others (PLD 1990 Supreme Court 626) and Salah-ud- Din Qureshi vs. Federal Land Commission and others (1992 CLC 2362). It has further been argued that by virtue of Quzalbash Waqf case (PLD 1990 SC 99), relevant provisions of MLR 115 have been declared as contrary to the injunctions of Quran and Sunnah and, therefore, the gifts in favour of the petitioners made by Respondent No, 3, their brother, evidenced through the abovesaid mutations, are to be treated as valid because so far the order of Chief Land Commissioner dated 25.6.1975 affirmed by Federal Land Commission, on 28.5.1979, has not been acted upon and the land gifted to the petitioners has not been included and calculated in the holding of the declarant i,e, Respondent No, 3, it has not been resumed, the possession of the same is till with the petitioners and it has, therefore, .not been transferred/allotted any further to any landless tenants under MLR
115. In the end, it has been submitted that the gifts having been made in favour of unmarried sisters, who had not received their due share of inheritances of their father's property, were and are valid, under Para 7(1)(b)(ii) of MLR 115, as the same validated transfers of land by way of gift in favour of unmarried sisters, who had not received their due share of inheritance of ancestral land.
7. The petitioners are donees of land in question, which has been ordered to be resumed through the impugned judgments. They, therefore, A had a vested right to be heard. The Chief Land Commissioner, Punjab, while exercising the suo motu revisional powers and while passing the impugned judgment dated 25.6.1975 and while declaring the impugned transactions of gift as invalid, did not associate the petitioners in the proceedings and did not grant them an opportunity of being heard, although they are directly affectees of the said proceedings. We, therefore, hold that. the judgment dated 25.6.1975 passed by Chief Land Commissioner, Punjab, Lahore, being violative of principle of natural justice of audi-alteram partem, is illegal and without jurisdiction.
8. Section 25 of Land Reforms Act, 1977 (II of 1977) reads as follows: "All proceedings pending before the Federal Land Commission shall, on commencement of this Act, stand abated unless the Federal Government directs otherwise in a case or class of cases."
All proceedings pending before the Federal Land Commission, therefore, stood abated except the ones, which were to be saved by' the Federal Government in the manner provided in Section 25 of Act, II of 1977.
9. In the present case, the Federal Land Commission assumed the revisional jurisdiction under general Notification No, II-1977/LR/1-78 dated 23.9.1978, which reads as follows : "In exercise of the powers conferred by Section 25 of the Land Reforms Act, 1977 (II of 1977), the Federal Government is pleased to direct that the proceedings in cases under Paragraph 29 of Land Reforms Regulation, 1972, pending before the Federal Land Commission on the commencement of the said Act shall not stand abated."
10.The provisions of Section 25 of Land Reforms Act, 1977 (II of 1977) and the vires of the abovesaid Notification dated 23.9.1978 came up for consideration before the Hon'ble Supreme Court in Federal Land Commission through its Senior Member, Islamabad vs. Sher Muhammad and others (supra) and it was held that the object of Section 25 was to achieve abatement in all cases except those which were intended to be kept alive by the Federal Government by application of mind to such cases either individually and/or class/es and the intention underlying Section 25 was never to keep alive the pre-exiting position. The leave was, therefore, refused by agreeing with the interpretation of the Notification in question by the High Court wherein it was held that the Notification in fact purported to nullify the effect of Section 25 of the Act as a whole, and, therefore, it was ultra vires of the powers of the Federal Government. Similarly, in Salah-ud-Din Qureshi vs. Federal Land Commission and others (supra), by way of following the law laid down by the Hon'ble Supreme Court in Federal Land Commission through its Senior Member, Islamabad vs. Sher Muhammad and others (supra), it was held that the Senior Member, Federal Land Commission had no authority to re-open the past and closed chapter because there was no material on the file that the present case was 'consciously considered by the Federal Government that the same shall not stand abated.
11. In the present case also, in the absence of any material on the file that the present case was consciously considered by the Federal Government that the same shall not stand abated, the contention of the learned counsel for the petitioners prevails and it is held that the Senior Member, Federal Land Commission, who passed the impugned judgment dated 28.5.1979, had no authority to decide the revision petition as the same stood abated under Section 25 of the Act, II of 1977. The judgment dated 28.5.1979 of Federal Land Commission, to the extent of two transfers in dispute evidenced vide Mutations Nos, 444 & 54, pertaining to Villages Darapur and Shah Kameer, is set aside. The said judgment, to the extent of third transfer evidenced through Mutation No, 1624, pertaining to Village Virachan Wala, shall, however, remain intact, as to this extent the said judgment has attained finality because nobody has assailed it any further. Mutation No, 1624 of Village Virachan Wala shall, therefore, be treated as valid.
12. In view of the above mentioned, the writ petition is partly allowed, the impugned judgment dated 28.5.1979, passed by Senior Member, Federal Land Commission, to the extent of the aforementioned two transactions in dispute, is set aside. Similarly, in view of the observations made above, the impugned judgment dated 25.6.1975, passed by Chief Land Commissioner, Punjab, Lahore, is set aside. The suo moto revision, only to the extent of aforesaid two transactions in dispute (Mutations Nos, 444 & 54) shall be deemed to be pending before the Chief Land Commissioner, Punjab, who shall decide the same afresh after granting a hearing to all concerned parties including the petitioners and while doing so and while considering all the pleas being urged before him, shall also consider the effect of Qazalbash Waqf Case (PLD 1990 Supreme Court 99) and the provisions of para 7(1)(b)(ii) of MLR 115. This petition is accordingly disposed of, with no orders as to costs.