RAJ BIBI Versus ADDL. CHIEF LAND COMMISSIONER

K. M. A. SAMDANI, J. -Mst. Raj Bibi petitioner is a declarant under the Land Reforms Regulation of 1972, who alienated land amounting to a total of 9067 produce index units by oral sales in favour of her cousins and a cousin's daughter who are all co-petitioners in this case, in the years 1969 and 1971. Since before these sales she was the owner of 13178 units of land she had to file a declaration. The learned Land Commissioner, however, held the sales to be void under paragraph 7(1)(b) of the Land Reforms Regulation (M. L. R. 115), 1972, as he found the consideration alleged to have been paid by the vendees to the vendor to be inadequate, and directed by his order dated 29th of November 1972, that those 9067 units be added to the holding of the declarant for the purposes of the Regulation. A joint appeal preferred to the Chief Land Commissioner by the vendor and the vendees failed and it was rejected by the Additional Chief Land Commissioner on the 9th of August 1973. Hence this writ petition in which not only the findings of the Land Commissioner and the Additional Chief Land Commissioner have been challenged and a question with regard to the applicability of para. 7 of the Regulation for purposes other than those of the Regulation has been raised but also the constitutionality of the Regulation itself together with that of the Post Constitutional Presidential Order No. 1 of 1972 and the Punjab Ordi nance No. XV of 1972 has been called into question.

2. The constitutional objections, however, have already been heard and disposed of by our judgment. dated 19th of February 1974 in Writ Petition No. 1790 of 1972.

3. As to the finding of the Land Commissioner with regard to the validity of the transactions in question under para. 7(1)(b) of the Regulation, the learned counsel for the petitioners contends that under the Muslim Law inadequacy of consideration is by itself no ground for invalidating a transaction of sale. According to him such transactions are termed. "MAHABAAT" and are held to be valid by Muslim Jurists. But it must be noted that the Land Commission acts under the authority of the Land Reforms Regulation and it has been expressly laid down in Explanation III to clause (b) of para. 7(1) that in determining whether a transaction referred to in the said clause is bona fide or otherwise, the Commission shall among other things, take into consideration whether adequate consideration has been paid.

In view of this express provision, the learned Land Commissioner and the Additional Chief Land Commissioner were well within their authority to hold the transactions to be not bona fide on account of the inadequacy of the consideration. And in the exercise of our writ jurisdiction, we cannot go into the question as to whether the finding is, in the circumstances of the case, correct or not.

4. Thus we are left only with one question i.e. whether the transactions in question are void for all purposes and so the 9067 units in question will continue to vest in Mst. Raj Bibi the vendor even after she has surrendered her excess land. It may be mentioned here again that before the sales in question she owned 13178 units of land i.e. 1178 units in excess of the permissible limit. Although the Land Commissioner has said in so many words in his order dated 29-11-1972 that the units sold by cost. Raj Bibi "should be added to the present holding of the declarant for the purpose of the Martial Law Regulation No. 115." The learned counsel for the petitioners is afraid that the transactions have been invalidated for all purposes.

The apprehension, in our opinion, is not ill-founded in view of the language of clause (b) of sub-para. (1) of para. 7 of the Regulation which reads as follows, after omitting the provisions and explanations thereto :-

"(b) save in cases where the Commission is satisfied that, it was a bona fide transaction the transfer of any land and the creation of any right or interest in or incumbrance on any land, made in any manner what so ever, by any person holding at any time during the 1st day of March 1967 to the 19th day of December 1971 (both days inclusive) an area equivalent to more than twelve thousand produce index units (calculated on the basis of classification of soil as entered in the Revenue Records for Kharif 1966 and Rabi 1966-67 shall be and shall be deemed always to have been void, and the land so transferred or the land on which the right, interest or incumbrance was no created shall be and shall be deemed always to shall been, owned or possessed, as the case may be, by the person by whom it was owned or possessed immediately before that date."

5. The learned counsel contends that after the purposes of the Regulation have been served i.e. once the declarant has surrendered the excess land after adding the land affected by the invalidated transactions to the declarant's holding, there remains no justification for treating those transactions as void for any other purpose. In other words such transac tions should be considered to be void only for the limited purpose of determining the extent of the total holding of a declarant and there is no warrant in law to treat them as inherently void. On this basis the learned counsel asserts that to declare such transactions void is beyond the lawful authority of the Land Commission.

This contention is not without force. A detailed examination of the entire Regulation will show that the purpose of the Regulation is not to regulate alienations of land in the country but to limit the extent to which any individual can hold land. The various Land Commissions have been set up for the purpose of ensuring surrender of excess land by those who hold land in excess of the limit permitted under the Regulation and to see that the land so surrendered will pass into the intended hands. And in order to check possible circumstances of the law by unscrupulous land-holders the Land Commissioners have been empowered to scrutinize all transfers of land made by persons holding land in excess of the permissible limits any time during the 1st of March 1967 to the 19th of December 1971. The Regulation further declares the transfer of any land and the creation of any right or interest in or incumbrance on any land made in any manner whatsoever in respect of any area on or after the 20th day of December 1971 by any person holding immediately before that date an area exceeding the permissible limit to be void and directs the land so transferred or incumbered to be treated as owned or possessed by the person by whom it was owned or possessed immediately before that date. If as a result of the scrutiny any transaction referred to above is not found to have been made bona fide it has to be treated as void and the land affected thereby to be deemed to be owned or possessed by the declarant.

7. Therefore, the question for consideration is whether a transfer of land declared to be void under paragraph 7 (1)(a) of the Regulation or held to be void by a Land Commission under paragraph 7(1)(b), is void for all purposes even as between the parties to the transaction or only or the purposes of determination by the Land Commission of the extent of the holding of the declarant. A similar question arose as long ago as 1940 in Britain in the case Phillpotts v. Phillpolts (84 R R 460). The facts of that case were that in Britain no man was entitled in those days to vote at elections unless he owned property. So, the Parliament took care to enact a law declaring a fraudulent conveyance made for the mere purpose of conferring a vote as null and void. But when the scope of that law came under judicial scrutiny, it was held that "such a conveyance as stipulated there under was void only to the extent of preventing the right of voting from being acquired but was valid and effectual as between the parties to pass the interest".

The case of the alienations hit by paragraph 7(1) of the Land Reforms Regulation is parallel to the case cited above. Therefore, there is no reason why the alienations which are hit either by clause (a) or clause (b) of sub-para. (1) of paragraph 7 should not be held to be void only for the purpose of the Regulation but valid and effective as between the parties to pass the interest if they do not otherwise suffer from any invalidity.

8. In fact we are of the opinion that this is also the intention of the author of the Regulation which has been clearly expressed in sub paragraph (3) paragraph 7 which reads as follows :-

"Nothing in sub-paragraph (1) shall apply to any transfer of land or the creation of any interest or right or incumbrance or any land made by a person who held on 20th December 1.971, 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."

But unfortunately this provision of the Regulation appears to have been misconstrued and held to have application only to transactions of transfer etc. made by a declarant after he has surrendered the excess land. In a recent case, however, reported as Mst. Karam Illahi v. State (P L D 1974 Rev. 17) the learned Chief Land Commissioner, Punjab, observed as under :-

"Once the total holding of the declarant inclusive of the area of the mutation declared void has been worked out and he has surrendered to the Government the area in excess of the permissible ceiling it will be in order for the declarant to honour the alienation already made and consider himself divested of the alienated area from out of his retained ceiling and the retained land vide sub-para. (3) of para. 7 of 1VI. L. R. 115."

This is an indication of the fact that the Punjab Land Commission is also of the view that the alienation held to be void under sub-para. (1) of para. 7 may remain valid and effective as between the parties. But the learned counsel for the petitioners is not satisfied with the manner in which the learned Chief Land Commissioner has made this observation ; and the learned Assistant Advocate-General also contends that unless the alienor, whose alienation has been hit by sub-para. (1), realienates the land formally in order to honour his commitment, the alienation will remain void.

It is, therefore, necessary that we remove the doubt regarding the implications of sub-para. (3) of paragraph 7 of the Regulation and express in clear terms, in order to avoid uncertainty, how the said paragraph should be construed. The expression "after he has surrendered to Government . . . . . The land in excess of such limits." In paragraph 7(3) of the Regulation does not mean that the reference therein is only to the transactions to be entered into after the excess land has been surrendered to the Government. It, in fact, means that once the excess land has been determined, after applying the provisions of sub-para. (1) of paragraph 7 of the Regulation, and resumed, the said paragraph will cease to have effect not only prospectively but also retrospectively except in respect of the land which has been surrendered. For example, in the present case the declarant had 13178 units of land to start with but she claims to have alienated 9067 units out of it. This alienation has been held to be void for the purposes of the Land Reforms Regulation with the result that she has been held liable to surrender 1178 units. But since she considers herself to be bound by the alienations made by her, she regards herself as the owner of only 41.11. units. If, therefore, she chooses to surrender 1178 units out of 4111 units of land which according to her, still belongs to her, the purpose of the Regulation will be served and the alienations made by the declarant will remain intact. There is no reason why in a case like this the alienations should be considered to be void for any purpose other than that of determining the extent of the declarant's holding on the relevant date. However, should the declarant choose to surrender excess units wholly or partly out of the land alienated by her, as it is permissible under the Regulation, the alienation will become void by operation of law to the extent of the surrendered land, and to that extent the affected alienee may claim compensation from the alienor. But again there is no reason why the alienations in respect of the balance of the alienated land should be held to be void for all purposes. It is to be noted that this construction has the advantage of saving the persons not otherwise affected by the Regulation but involved in transactions hit by paragraph 7(1) from unnecessary litigation without defeating the purpose of the Regulation in any manner. It will also save the declarant from going through the exercise of retransferring land or recreating rights, interests in, or incum brances on, land in order to honour this commitment which, although held void under paragraph 7(1) he bas been able to protect by a considerate exercise of his right of selection of land for the purpose of retention.

9. Accordingly in partial acceptance of the writ petition we declare the impugned orders of the Land Commissioner and the Additional Chief Land Commissioner dated 29th November 1972 and 9th of August 1973 respectively to be without lawful authority and of no legal effect only in so far as they declare the alienations in question to be void for any purpose other than that of determining the extent of the declarant's holding. The petition, however, is dismissed otherwise. The parties shall bear their own costs.

10. As this petition was filed for the purpose of getting the impugned orders of the Land Commissioner and the Additional Chief Land Commis sioner declared as without lawful authority, altogether not only on the basis of the peculiar circumstances attending the alienations in question but also on the constitutional grounds referred to in the earlier part of this judgment and as those constitutional objections have been overruled (vide judgment dated 19-2-1974 in W. P. No. 1790 of 1972), the learned counsel for the petitioners prays for a certificate under clause (2) ( f ) of Article 185 of the Constitution.

Since the case undoubtedly involves substantial questions of law as to the interpretation of the Constitution, we hereby grant the required certificate.

S. A. H. Petition partly accepted.