MUHAMMAD KHAN Versus CHIEF LAND COMMISSIONER

K. M. A. SAMDANI, J .‑Malik Muhammad Khan petitioner is a declarant under the Land Reforms Regulation, 1972. In the course of the scrutiny of his declaration forms, a gift of land made by him in favour of his grand‑sons in February 1970 was held to be void by the Land Commis sioner by his order dated the 15th of September 1972 on the ground that the grand‑sons were non‑haris. The petitioner appealed to the Chief Land Commissioner but the appeal was dismissed on the 9th of August 1973. Hence this writ petition.

2. It is an admitted fact that the disputed gift is in favour of non haris. But the learned counsel for the petitioner argues that since even after deducting the land involved in the disputed gift, the total holding of the petitioner exceeds the permissible limit and since he has already surrendered the excess land the Land Commission has no authority, in view of sub‑paragraph (3) of paragraph 7 of the Regulation to scrutinize under sub‑paragraph (1) of the said paragraph any alienations made by the petitioner.

In other words the learned counsel seeks to construe paragraph 7(3) of the Regulation to mean that where a declarant admits to be the holder of land in excess of the permissible limit on the 20th of December 1971, and surrenders the admitted excess land, sub‑paragraph (3) of the Regulation precludes the Land Commissioner from scrutinising the alienation made by him either before, on or after the 20th of December 1971, under sub paragraph (1) thereof. Sub‑paragraph (3) relied upon by the petitioner's counsel reads as follows:‑

"7(3) Nothing in sub‑paragraph (1) shall apply to any transfer of land or the creation of any interest or right or encumbrance on any land made by a person who held on 20th December 1971, land in excess of the permissible limits under paragraph 8 after he has surrendered to Government, in accordance with the provisions of this Regulation, the land in excess of such limits."

A plain reading of this sub‑paragraph will show that it does not support the contention of the learned counsel. Despite our best and sincere efforts we have not been able to read into it the meaning which he finds therein.

His contention is that since, according to the sub‑paragraph (3) the sub‑paragraph (1) ceases to have effect "after the declarant has surrendered to Government . . . . the land in excess of the permissible limits" and since the petitioner has surrendered land which, in his view, was in excess, sub‑paragraph (1) cannot be invoked to scrutinize the alienations made by him. But this contention fails to take notice of the fact that "the land in excess of permissible limits" referred to in sub‑paragraph (3) means that land which is found by the Land Commission to be m excess after all the transfers of land and the creations of rights, interests or incumbrances on land made by the declarant after the 1st of March 1967 have been scrutinised and their validity determined in accordance with the provisions of sub‑paragraph (1) of paragraph 7.

3. Therefore, the question of the applicability of sub‑paragraph (3) arises only after the effect of sub‑paragraph (1) on the transfer of land o creation of rights, interests or incumbrances has been determined and not before. In our view the intent pf sub‑paragraph (3) is only that once, the excess land has been determined, after applying the provisions of sub‑paragraph (1) of paragraph 7 of the Regulation, and resumed, the transfers of land and creation of rights etc. should no longer be treated as void under the Regulation except in so far as they relate to the land which has been surrendered.

4. In this view of the matter we find no force in this writ petition. It is accordingly dismissed. However, the parties shall bear their own costs.

S. A. H. Petition dismissed