ABDUL WADUD KHAN vs CHIEF LAND COMMISSIONER AND ANOTHER

' ZAFFAR HUSSAIN MIRZA, J.-This judgment shall dispose of Civil Appeal No, 38-P of 1973, Civil Petition No, 50-P of 1974 and Civil Petition No, 51-P of 1974, as they arise out of common facts and common questions of law required to be determined in these cases.

2. The facts of Civil Appeal No, 38-P of 1973 are that appellant Abdul Wadud Khan held agricultural land in District Mardan of the North-West Frontier Province and District Lahore of the Punjab Province at the material time. On the promulgation of the Land Reforms Regulation, 1972 (hereinafter to be referred to as the "Regulation)," he filed declarations under paragraph 12 thereof, in which he disclosed various alienations made by him during the period between 15-8-1967 and 20-8-1971. The learned Land Commissioner, North-West Frontier Province, on scrutinizing the declarations upheld all the alienations made by the appellant as valid, except for one which was made by him by way of gift in favors of his mother Mst. Tajbaro, which comprised an area of 73 acres 1 kanal, being the 1/5th share of the appellant in a larger area jointly held by him. Along with the other co-sharers. The case of the appellant was that he had made an oral gift of the disputed property in favour of his mother in the year 1969 but no contemporaneous entries in the official record were made of this alienation. However the transaction was acknowledged by the appellant in an unregistered deed dated 4-1-1971 and necessary entries in the revenue record were made later on 20-12-1971. Subsequently on a suit filed by the done a declaratory decree was passed against the appellant by the learned Civil Judge, Mardan recognizing the gift alienation in favor of his mother, on 12-5-1972. The learned Land Commissioner, Peshawar Division, after hearing the appellant and perusing the record, took the view that, since the transaction of gift in question was not registered and its implementation in the revenue record had taken place after 20-12-1971, alienation could not be held. As genuine, and that the entries in the revenue record appeared to have been arranged to circumvent the provisions of the Regulation.

3. The appellant sought to challenge the aforesaid order of the Land Commissioner in an appeal before the Chief Land Commissioner, North-West Frontier Province but his appeal was dismissed vide order dated 24-8-1972. His review application before the Chief Land Commissioner also met the same fate and was dismissed.

4. The appellant then filed Writ Petition No, 83 of 1973, calling in question the orders passed by the Land Reforms Authorities, declaring the gift alienation made by him in favour of his mother invalid under paragraph 7 of the Regulation. A Division Bench of the Peshawar High Court as per the impugned order dated 19-6-1973, however, dismissed the Writ Petition in limine.

5. On a petition for leave to appeal filed by appellant Abdul Wadud Khan, this Court granted leave in order to examine, amongst others, the question of the validity "of the Land Reforms Regulation particularly Martial Law Regulation No, 128, promulgated on 22-4-1972".

6. Civil Petition No, 51-P of 1974 has been filed by Mst. Tajbaro and arises out of the same set of orders passed by the. Land Reforms Authorities, whereby the gift made in her favour by her son Abdul Wadud Khan (appellant in Civil Appeal No, 38-P of 1973) was not accepted as valid for purposes of the Regulation. In this case also the petitioner Mst. Tajbaro filed a Writ Petition in order to challenge the legality of the orders passed against her interests by the Land Reforms Authorities but her Writ Petition was dismissed vide judgment of the Division Bench of the Peshawar High Court dated 6-12-1973.

7. Civil Petition No, 50-P of 1974 is by one Mst. Jamshed Begum wife of Abdul Rauf Khan, who also claims that in the year 1968 she was gifted orally by her husband his 1/5th share of the joint khata of agricultural land measuring 69 acres 6 marlas situate in various villages of Mardan District.

Although all the essential ingredients for oral gift were fulfilled and petitioner Mst. Jamshed Begum was in enjoyment of all the benefits of ownership rights, no entries were contemporaneously made in this case also. However, on 27-12-1970 the donor executed an acknowledgement deed wherein he accepted the factum on having made the oral gift in the year 1968 and subsequently mutation was sanctioned on 19-2-1972. Thereafter she had also obtained a declaratory decree against her husband from the Court of Senior Civil Judge, Mardan on 12-5-1972. In the declarations filed by her husband the gift alienation made in her favour was duly disclosed but on scrutiny of the declaration form, the Land Commissioner, Peshawar, by his order dated 8-7-1972 refused to accept the bona fides of this transaction and rejected it as invalid. The alienation in this case was also rejected for the same reasons as in the case of gift transaction in favour of Mst. Tajbaro (petitioner in Civil Petition No, 51-P of 1974). The declarant Abdul Rauf Khan had also filed an appeal and a review application before the Chief Land Commissioner, North-West Frontier Province but did not succeed in obtaining the reversal of the order passed by the Land Commissioner refusing to uphold the alienation. In the circumstances, petitioner Mst. Jamshed Begum filed Writ Petition No, 80 of 1973. This Writ Petition was dismissed and disposed of by common judgment passed by a Division. Bench of the Peshawar High Court already referred to in the case of Mst. Tajbaro. Both the last mentioned petitioners being aggrieved by the order passed against them by the High Court, filed Civil Petitions Nos. 50-P and 51-P of 1974 for leave to appeal from the said judgment. These Civil Petitions were heard by a Bench of this Court on 5-6-1974 and an order was recorded on that date, making a reference to the leave granting order passed in the case of Abdul Wadud Khan (Civil Appeal No, 38-P of 1973), and it was directed that since the question of law raised was the same, these two petitions shall be heard alongwith the aforesaid appeal and be disposed of as appeals after converting them.

8. Mr. Fahhruddin G. Ebrahim who appeared in support of the appeal and the two petitioners, at the very outset stated that the question relating to the validity of the Land Reforms Regulation and Martial Law Regulation No, 128 does not require decision in this case as it stands finally settled by the judgment of this Court reported as Mehren Zaibun Nisa v. Land Commissioner, Multan and others . Learned counsel, however, raised several questions of law in support of the appeal and the petitions. After hearing the learned counsel for the parties, we are of the opinion that these cases an be disposed of on a short ground and, therefore, it is unnecessary for us to consider the remaining contentions advanced in support of these cases. It is. Submitted that at no stage of the proceedings before the Land Reforms Authorities in these cases, the donees were given notice or any other opportunity of hearing. The contention, therefore, is that since the impugned orders of the Land Reforms Authorities operated to take away the right and interest of the allottees in the disputed land, they are entitled to hearing before adverse orders could be held binding on them. In support of his contention learned counsel has referred us to the case of Ch. Abdul Aziz v. Deputy Land Commissioner, Dera Ghazi Khan , Mst. Bibi Amirun Nissa and 2 others v. The Chief Land Commissioner, Sind at Hyderabad and Muhammad Noorul Husnain and another v. Sind Land Commissioner, Hyderabad . In all these cases the donees of the gift transactions under the Land Reforms Regulation were not made parties in the proceedings before the said Authorities and the view taken was that the orders were passed without lawful authority as they were violate of the rule of natural justice, Mr. Sahibzada Akhter Malik, learned counsel appearing for the respondents was unable to challenge the view taken by the High Courts in the cited cases and very fairly conceded that the donees were entitled to notice in these cases before the passing the orders affecting their interests. The proposition of law that the rule of natural justice shall be read into the provisions of every enactment unless the contrary is expressly provided is by now well established and we are, B therefore, in entire agreement with the view taken by the High Courtesan the cited cases. The orders passed by the Land Reforms Authorities had the' effect of disentitling the donees of any rights that may have accrued to them as a result of the gift alienations. They had, therefore, the right of hearing' guaranteed to them under the law by virtue of the principles of audi alteram partem.

9. We regret or inability to agree with the view taken by the High Court in the cases in hand that the donees were not entitled to notice because the declarant/donor, who was a close relation of the donor had been pursuing the case vigorously before the Land Reforms Authorities. In absence of evidence to the effect that the declarant was authorised to pursue the proceedings on behalf of the donee it will not be possible to hold that the declarant also represented the interest of the donee.

10. In the view that we have taken, the orders passed by the Laud Reforms Authorities were passed without lawful authority and are of no legal effect. We have, therefore, converted the petitions into appeals and allow all the appeals. The orders of the Land Reforms Authorities are quashed and the cases shall be remitted to the Land Commissioner, for a fresh decision after notice to the parties, including the dunes. It is clarified that it will be open to the parties to take any pleas of law or fact that they may wish to raise before the Authorities, In the circumstances of this case, there shall be no order as to costs. PLD 1975 SC 397 PLD 1975 Lah. 417 PLD 1979 Kar. 200 PLD 1979 Kar. 4601 2 3 4 1 2 3 4