KHUDA BAKHSH Versus FEDERAL LAND COMMISSION

ORDER

1. NASIM HASAN SHAH, J.‑ Malik Rab Nawaz, now deceased, made a declaration under the Law Reforms Regulation, 1972 (M. L. R. 115) in relation to his land situated in village Hadali, Tehsil Khushab and Nulli Janubi, wherein an area of 1440 Kanals 17 Marlas of land were shown as having been the subject of a transaction of gift. The said gift was allegedly made in favour of his wife Mst. Inayat Sultana, respondent No. 4 and his two sons Khuda Bakhsh and Muhammad Khan, Petitioners Nos. 1 & 2 herein by a mutation entered on 14‑5‑1969 and sanctioned by the learned A. C. II on 30‑5‑1969. The aforesaid transaction gift was accepted as valid by the Land Commissioner, Sargodha, vide his judgment dated 14‑6‑1972. The case, however, was reopened suo motu by the learned Member, Federal Land Commission and by an ex parte order dated 19‑8‑1976 passed by him the mutation of gift was held to be void so far as it related to the two sons, the petitioners herein. The gift in favour of the wife (Respondent No. 4), however, was to be valid and upheld.

2. The above order having been passed by the Member of Federal Land Commission in the absence of the parties affected was challenged in the Lahore High Court through Writ Petition No. 2776 of 1977. The said petition was accepted vide order dated 20‑3‑1978 .by the High Court with the observation that the petitioners' assertion that the learned Member had acted behind the back of the parties affected without affording them an opportunity of being heard, was correct. The said order was also found to be bad on account of the view taken by the Lahore High Court in Ashiq Muhammad Khan Mazari v. Chairman, Federal Land Commission (P L D 1977 Lah. 461), that a single Member of the Land Commission could not exercise the powers of the Federal Land Commission.

3. The Member, Federal Land Commission, Rawalpindi, filed a Civil Petition for Special Leave to Appeal No. 56‑R of 1978 in this Court against the judgment of the Lahore High Court dated 20‑3‑1978 and leave was granted to consider the question relating to the competence of a single Member of the Federal Land Commission to exercise powers under para. 29 of M. L. R. No. 115 i.e. suo motu powers. In the meantime, on 17‑1‑1982, respondent No. 1 issued notice to the petitioners and their deceased father Malik Rab Nawaz in order to rehear them as the earlier order passed by his predecessor was found to be invalid on the ground that they had not been heard. He also called for the records. The petitioners appeared before the respondent, Member Federal Land Commission on 17‑2‑1982 and raised an objection to effect that he had no jurisdiction to call for the record of the case after 20‑9‑1976 in view of the provisions of para. 29 of the M. L. R. No. 115. Further, that since the judgment of the Lahore High Court dated 20‑3‑1978 was the subject‑matter of litigation before this Court, the petitioners could not be proceeded against in any manner what soever.

4. The respondent No. 1, however, withdrew his appeal before this Court (arising out of C. P. S. L. A. No. 56‑R of 1978) and proceeded, to hear the matter after notice to the petitioners and disposed it of by an order dated 20‑6‑1982. He held that a single Member of the Federal Land Commission could pass the order passed by him under para. 29 of M. L. R. No. 115 in view of the Land Reforms Regulation (Validation of Orders) Ordinance, 1978 and that the Member of the Federal Land Commission could exercise suo motu revisional powers after 30‑9‑1976, if the record of a given case had been called before the said date. In this case, the record of the case had been called for scrutiny by the then Member of the Federal Land Commission on 20‑8‑1975 which was well within the limitation. As to the merits, he reiterated the view earlier expressed by his predecessor Member, Land Commission that the gift in favour of petitioners Nos. 1 and 2 was invalid and, accordingly, the order of the Land Commissioner dated 14‑6‑1972 was set aside.

5. The petitioners challenged the above order passed by respondent No. 1, dated 20‑6‑1982 through a writ petition in the Lahore High Court (W. P. No. 3196/82) but the same was dismissed in limine on 5‑10‑1982. Hence this petition for leave to appeal.

6. Mr. Muhammad Arif, learned counsel for the petitioners, in support of this petition, has argued that the decision of the Lahore High Court dated 8‑10‑1977 (passed in W. P. No. 2/76 of 1977) had attained finality vis‑a‑vis the Federal Land Commission authorities and the present petitioners (including the deceased‑declarant, predecessor of the petitioners and respondents Nos. 3 and 4 herein) whereby it was held that the order dated 19‑8‑1976 passed by the predecessor of respondent No. 1 without notice to the petitioners (and their deceased predecessor) was quashed. The said order could not be construed as an order of remand and the proceedings could not be restarted from the point where the illegality crept in, namely from the time when notice was not issued to the petitioners.

7. It was also submitted that calling for the record of any case before 30‑11‑197 and the passing of the order by a Federal Land Commission there after rendered the Land Commission authorities functus officio and the earlier order calling for the record for scrutiny on 20‑8‑1975 could not be availed in the facts and circumstances of the case.

8. These contentions, inter alia, require consideration. Leave granted.

9. Security Rs. 1,000.

10. The appeal shall be made ready on the present record with liberty to the parties to add further documents and put up for hearing as early as possible.

11. The interim order dated 25‑10‑1983 shall remain in operation meanwhile.

12. S.Q. Leave granted.