NISAR AHMAD Versus Mst. RUKHSANA
1. KA. GHANI, J.--- This petition has been filed challenging the order dated 5-2-1979 passed by the Senior Member, Federal Land Commission, Rawalpindi, in Suo Motu Revision No. SMR-2(11/23)FLC/78 (State v. Mst. Rukhsana).
2. The brief facts of the case are that on 3rd November, 1971 according to the case of the petitioners on the basis of oral statements made, the following transactions after due verification were mutated in Record of Rights, Form No.VII:--
3. S.No.
4. Transferor
5. Transferee
6. Details of S.Nos. or its parts.
7. 50.
8. Mst. Shabnam d/o Sikandar Ali Bhutto.
9. Anwar Ali s/o Abdul
10. Majid Bhutto 0-8-0
11. Najmul Hassan s/o Anwar Ali Bhutto 0-8-0
12. 441,442,444,445, 446,447,455 to
13. 465
14. (103-27 Acres)
15. 350 to 365
16. 51
17. Mst.Rukhsana d/o ikandar
18. Ali Bhutto, Full
19. Ghulam Shabir s/o Abdul Majid Bhutto 0-8-0 Nisar Ahmad son of Abdul Majid Bhutto 0-8-0
20. (98 -22 Acres)
21. According to the case of the petitioners, acting upon aforementioned transactions, they were put in possession of these lands and since then they have been enjoying possession and usufruct of their respective lands as owners to the exclusion of the transferor/s.
2. On coming into force of Martial Law Regulation 115 of 1972 the above alienations were disclosed by the above-named transferors and after scrutiny the same were confirmed by the Sind Land Commission, Hyderabad by order No.18/10/LCI-72/299 passed on 10-6-1972 and No. 18/10/LC/72/2112, dated 8-8-1972.
3. Subsequently after allowing the above alienations the Deputy Commissioner Larkana held that the declarant still held an area of 313-2 acres equivalent to 9160 PIUs on her Khata and being entitled to retain 12000 PIUs, it would not attract provisions of para.8 of M.L.R. 115 and as such the declarant/the present respondent No.1 was allowed to retain the whole area.
4. Subsequently on 28th September, 1978 a notice was issued by the Senior Member Federal Land Commission, Rawalpindi addressed to the respondent No. 1 alone whereby she was called upon to show-cause, to appear and satisfy about correctness and legality of the orders passed by the Sind Land Commission and the Deputy Commissioner mentioned above.
5. The respondent No.1 pursuant to the said notice appeared before the Senior Member Federal Land Commission and contested the matter. Perusal of the impugned order shows that the referred alienation made in favour of the petitioners and the fact that their names appeared duly recorded as Khatadars in Form VII Record of Rights, were duly disclosed by the Respondent No.1 but the respondent No. 3, without taking any steps to issue any show-cause notice or giving any opportunity of being heard to the transferees i.e. the petitioners set'' aside the orders already passed by the Sind Land Commission followed by order of Deputy Commissioner, Larkana, whereby the above alienation had earlier been confirmed and verified in favour of the petitioners.
22. The suo motu revision was thus allowed by the respondent No.3, and the transfers made in favour of the petitioners were declared as void.
6. The respondent No. 1 filed Constitutional Petition (Civil Petition No. 76 of 1979) in this Court challenging the aforesaid order, and the same was admitted for regular hearing. It however appears that subsequently on the basis of a statement made by the learned counsel for Mst. Rukhsana for withdrawal of said petition and thus the said petition was dismissed as withdrawn.
23. It is significant to note here that in that petition the present respondent No.1 who was the petitioner had disclosed and supported the alienation made in favour of the present petitioners. There is yet another important fact to be noted that the present petitioners neither had any notice of the said proceedings nor were joined as parties in the said petition. According to the present petitioners the said petition was withdrawn mala fide.
7. After the dismissal of the above earlier petition which had been filed by the present respondent No.1, and having learnt about the aforesaid orders and the conduct of the respondent No.1, the present petition inking the jurisdiction of this Court was filed challenging the impugned order passed by the respondent No. 3, the Senior Member, Federal Land Commission on 5-2-1979.
8. For the purpose of decision of this petition it is not necessary for us to go into the merits of the case as we find that the petitioners who are the transferees in possession, and whose names as noted above had already been duly mutated in record of rights, were neither given any show-cause notice nor an opportunity of being heard by the learned Senior Member, Federal Land Commission, before he passed the impugned order on 5-2-1979.
24. The learned counsel for the respondent No. 1 as well as Syed Sarfraz Ahmed, learned Assistant Advocate-General both frankly conceded that the petitioners were entitled to be heard before the impugned orders were passed declaring the alienation in favour of the petitioners void, after they had already been confirmed earlier by Land Commission Authorities as stated above. They, however, vehemently argued that the petitioners are not entitled to retain the land which in our opinion is a matter for the relevant authority to decide after hearing the petitioners.
25. We may here refer to the case of Muhammad Noorul Hussain v. Sind Land Commission, Hyderabad P L D 1979 Kar. 460 where a learned D.B. of this Court set aside the order of the Federal Land Commission on the ground that alienee was not a party to the impugned orders which adversely affected the said alienee. The necessity of hearing the alienee before the alienation could be set aside, has clearly been recognized in the said case as such a person was bound to be adversely affected if the alienation made in his favour was declared void.
26. We are in respectful agreement with the principles laid down in the above case, and thus find that the impugned order dated 5-2-1979 passed by the respondent No.3 cannot be sustained and the same is accordingly set aside and declared to have been passed without any lawful authority and as of no legal effect.
27. We further order that it will be open to the respondent No. 3 to re-hear the matter after giving notice to the petitioners and respondent No.1.
28. Subject to above and to the extent mentioned above, the petition succeeds and the case is remanded to the respondent No.3 for decision according to law after affording the petitioners an opportunity of being heard.
29. In the circumstances of the case there shall be no order as to costs.
30. M.Y.H./2524/K Case remanded.