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Petitioner: Niaz Muhammad & 03 others VS Respondent: Muhammad Riaz & 09 others
Court Name: Lahore High Court Judge(s): Mirza Viqas Rauf, Ahmad Nadeem Arshad Title: Niaz Muhammad & 03 others vs Muhammad Riaz & 09 others Case No.: Writ Petition No. 519 of 2011 Date of Judgment:2022-03-10 Reported As: 2022 LHC 2396 Result: Order accordingly
JUDGMENT
JUDGMENT AHMAD NADEEM ARSHAD, J. This writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 is directed against the order dated 08.02.2011 passed by respondent No.6 (Chairman Federal Land Commission, Islamabad), whereby, he while accepting the revision petition under Section 27 of the Land Reforms Act, 1977 proceeded to set-aside the order dated 27.06.2009 passed by respondent No.7 (Chief Land Commissioner, Punjab) regarding upholding the order dated 25.07.2006 passed by respondent No.8 (Executive District Officer (Revenue)/Land Commissioner Attock) who dismissed the appeals against the land allotment orders dated 17.07.1998 passed by respondent No.9 (District Officer (Revenue) Attock/Deputy Land Commissioner, Attock) and directed respondent No.9 to allot the land to respondents No.1 to 5. 2. Facts in brevity are that land comprising in khasra No.786-min measuring 82 kanal 02 marla, khasra No.87 measuring 02 marla, khasra No.214-min measuring 94 kanal 05 marla, khasra No.18 measuring 07 kanal 16 marla, khasra No.176 measuring 03 kanal 07 marla, khasra No.518 & 519 measuring 03 kanal 12 marla of village Purani, Tehsil Pendi-Gheb, District Attock was resumed by the Government under Land Reforms Act, 1977 (herein after referred to as The Act). The said land was allotted to the petitioners by respondent No.9 vide separate orders dated 17.07.1998 in the following manner:- (i) Niaz Muhammad. Khasra No.786-min measuring 83 kanal 02 marla and khasra No.87 measuring 02 marla, total land measuring 83 kanal 04 marla. (copy of allotment order dated 17.07.1998 is available at page No.29 of writ petition). (ii) Rehmat Ali.
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Khasra No.214-min measuring 94 kanal 05 marla. (copy of allotment order dated 17.07.1998 is available at page No.30 of writ petition). (iii) Baz Khan. Khasra No.18 measuring 07 kanal 16 marla, khasra No.176 measuring 03 kanal 07 marla, khasra No.214-min measuring 53 kanal 17 marla, khasra No.786-min measuring 29 kanal 05 marla. Total land measuring 94 kanal 05 marla. (copy of allotment order dated 17.07.1998 is available at page No.32 of writ petition). (iv) Sher Zaman. Khasra No.518 measuring 01 kanal 17 marla, khasra No.519, measuring 01 kanal 15 marla, khasra No.567, measuring 31 kanal 19 marla. Total land measuring 35 kanal 11 marla. (copy of allotment order dated 17.07.1998 is available at page No.32 of writ petition). Respondents No.1 to 5 challenged said allotment order by way of filing five (05) separate appeals before the Commissioner, Rawalpindi Division/Land Commissioner, Rawalpindi on 08.08.1998 and 15.12.1998. On account of abolition of post of Commissioner, all the appeals were transferred to the court of Executive District Officer (Revenue)/Land Commissioner Attock on 15.09.2001. The main grounds of attack in the memorandum of appeals preferred by respondents No.1 to 5 were that they had also applied for allotment of land on the basis of tenancy and their applications were still pending adjudication; that the allottees in connivance of the Halqa Patwari got changed the entries in revenue record; that the appellants (respondents No.1 to 5) came to know regarding the change of entries in the month of July, 1998 and they applied for the correction of entries in Khasra Girdwari, reports were called for and Circle Girdwar reported in their favour for correction of Girdwari; that although they were in possession of the land and were also applicants for the transfer of the same but the allottees obtained the allotment orders behind their back in collusion with the revenue staff; that they are entitled to the allotment of the land for having the actual physical possession of the land as tenants at will and also for the reason that the said land is situated contiguous to the land belonging to them. Respondent No.8, after providing opportunity of hearing and consultation of the record, dismissed the appeals vide order dated 25.07.2006 in the following manner: - "I have carefully heard the arguments submitted by the counsel for the parties and gone through the record as well. It is evident from record that present appellants had applied for review of impugned order and the DLC Attock wrote a letter No.587/ADC (C) dated 14.9.1998 to the Commissioner, Rawalpindi Division Rawalpindi for seeking permission to review the impugned orders. In reply to said communication of DLC Attock, the Commissioner, Rawalpindi Division Rawalpindi vide his letter No.U-III-624/IR/AR/9970 dated 7.11.1998 intimated that powers of review have been extinguished w.e.f. 01.7.1975 and directed the DLC Attock to re-examine the case in the light of rules and re-submit the case alongwith a detailed report and specific recommendations through the D.C. Attock to proceed further in the case. The DLC Attock did not take any action in the matter. In other words review applications of present appellants stand rejected. As per section 163(4) of land revenue Act, 1967, no appeal can be made against the order passed in review. It may be added here that DLC Attock prior to move the case to Commissioner Rawalpindi Division Rawalpindi got an enquiry conducted in the matter through the revenue field staff. The perusal of said enquiry report of revenue field staff which is duly endorsed by the then A.C. Pindigheb, reveals that most of land under appeal is recorded as maqbooza malkan in the revenue record. Besides, the allotment of same has been made to the respondents being small land owners. In view of what discussed above, all the appeals being devoid of any force are dismissed." Feeling aggrieved, respondents No.1 to 5 filed separate revision petitions under Rule 13 of the Punjab Land Reforms Rules, 1977 (herein referred to as "Rules 1977 ) read with the Land Reforms Act, 1977
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which were dismissed by the respondent No.7/Chief Land Commissioner Punjab Lahore in the following manner: - "After hearing arguments of the parties and perusal of the record, I agree with the findings of the EDO(R)/Land Commissioner, Attock that the review applications of the petitioners were disposed of by the Deputy Land Commissioner, Attock. Since, the review applications were disposed of, no further appeal could lie against the said order. Agreeing with the findings of the EDO(R)/Land Commissioner, Attock. I do not find any merit in the present revisions petitions which are accordingly dismissed and order of the EDO(R)/Land Commissioner, Attock dated 25-07-2006 is upheld." Being dissatisfied, respondents No.1 to 5 filed revision petition under section 27 of "The Act" read with Rule 12 (3) of "the Rules, 1977" before respondent No.6, who vide impugned order dated 08.02.2011 allowed the revision of respondents No.1 to 5, set-aside the above referred orders and directed respondent No.9 to allot the land to the petitioners according to their possession as prescribed in the Act in the following manner: - "In view of the above picture of the case, keeping in view the arguments advanced by both the counsel for the parties and after perusing the relevant record of the case produced in the court, I have reached to the conclusion that the actual fate of the case has been broken by flagrant litigations. This is a case, which needs a lawful priority to be tackled with the actual position on face of the record. Record produced in the court reveals that the petitioners are still in physical possession of the land whereas, the respondents were allotted land on the basis of their being small land owners. According to the provisions of Section 15 of Land Reforms Act, 1977 read with Rule 7 of the Punjab Land Reforms Grant of Land 1978, only tenant is to be preferred for allotment of such land provided that the area should not exceed 12 acres together with the land already owned by him. The petitioners Muhammad Riaz and Muhammad Ayaz are thus entitled to allotment of the land for the reason firstly that they are still in physical possession and secondly that there jointly ownership is confirmed only to the extent of 4 kanals 10 marlas which also make them entitled to the allotment. As per the case of respondents, they are not in physical possession of the land. I am with the conclusive mind that this is not a case of time limit under Land Reforms Act, 1977 but is a case wherein the concerned record has been maneuvered to deprive of the actual and deserving tenants of the land. Federal Land Commission is fully empowered under Land Reforms Act, 1977 read with Sections 18 & 22 of the said Act to remove the legal flaws on the basis of actual facts and grounds of the cases. Therefore, I accept the instant revision petition with the directions to the Deputy Land Commissioner, Attock to allot the land to the petitioners according to their possession as prescribed in the Land Reforms Act 1977. The allotment already made is hereby cancelled and the impugned order of CLC is accordingly set aside. However, the respondents are free to approach the DO(R), Attock for their grievances if any on the basis of solid revenue record. The revision petition is disposed off accordingly." Being dis-satisfied, the petitioners challenged said order through instant writ petition. 3. Learned counsel appearing on behalf of the petitioners maintained that respondents No.7 to 9 passed the orders dated 27.06.2009, 25.07.2006 and 17.08.1998 strictly in accordance with law and there is no reason to upset said well-reasoned orders; that findings of facts recorded by respondents No.7 to 9 cannot be interfered in a revisional jurisdiction unless there was gross injustice and illegality committed by the subordinate courts but respondent No.6 without considering this proposition of law upset the orders of respondents No.7 to 9; that respondents No.1 to 5 failed to challenge the allotment order dated 17.08.1998 by way of filing of any appeal or revision and in this way said order attained finality and for avoiding the question of limitation, they filed review petition and in presence of said review petition, no appeal lie and respondent No.8 rightly dismissed the appeal of the respondents No.1 to 5; that respondents No.1 to 5 were not
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aggrieved persons as they lost their case on the point of limitation as orders were passed in their presence; that possession of the respondents No.1 to 5 with regard to allotted land was not proved through revenue record; that respondents No.1 & 2 claimed their possession during the year 1975- 76 which is factually incorrect as Muhammad Riaz was born on 24.6.1973 and was minor in the year 1975-76, whereas, Muhammad Ayaz was not even born in the year 1975-76; that respondent No.6 failed to consider this important aspect of the case while passing the impugned order dated 08.02.2011 and lastly prayed for acceptance of the writ petition and setting-aside of impugned order. 4. Conversely, learned counsel representing respondents No.1 to 5 defended the impugned orders by contending that respondent No.6 passed the orders keeping in view facts and circumstances of the case and after consulting the record; that respondents No.1 to 5 applied for allotment under their possession in accordance with policy/rules regarding allotment of land but the concerned Patwari got changed the record of khasra girdwari in favour of petitioners and they succeeded to get allotment of the said land with connivance of the revenue hierarchy; that Deputy Land Commissioner, Attock sought permission to make review of allotment order dated 17.07.1998 vide letter No.587-ADC(c) dated 14.09.1998 but failed to pass any order and said review application is still pending; that respondents No.1 to 5 filed appeals under section 11 of the Act with regard to orders dated 08.08.1998 and 12.08.1998 whereby the reports were called upon from District Collector, Attock, but before passing any order, the District Government System was introduced under Devolution of Powers Scheme, 2000 and EDO(R) took charge of the Commissioner of the Division as appellate authority who dismissed their appeals vide order dated 26.07.2006; that procedure for grant of land under section 15(1) and (2) of the Act is mandatory wherein the land is allotted to the tenants who are shown in cultivation possession of Rabi 1975-76 and Kharif 1976; that it is evident from the record that respondents No.1 to 5 were the cultivating tenant having physical possession over the suit property but the petitioners maneuvered the record of khasra girdwari and inserted fake entries in their favour by fraudulent means; that respondents No.1 to 5 have preferential right over the petitioners and respondent No.6 passed the impugned order keeping in view cultivating possession of respondents No.1 to 5 and prayed for dismissal of writ petition. 5. We have heard the learned counsel for the parties and perused the record with their able assistance. 6. "The Act", was promulgated under the Scheme of Land Reforms and idea was to cut the size of individuals holdings to the prescribe limits on the basis of entries in the revenue record on the date of commencement of the said Act and the excesses area was to be resumed in favour of land commissioner in order to utilize the surrender land under Section 15 to the landless tenants or persons owning less than 12 acre land. There cannot be any other better use of this property then by allotting the same to the poor landless tillers of the soil so that they may earn their livelihood out of it and feed and bring up poor and downtrodden children to make them respectable citizen of the society. According to the injunction of the Holy Quran, ALLAH Almighty has created every human being respectable on account of his being human. It is further ordered in the Holy Quran at so many places that the needy persons have a right in the property of believers and can get it as of right. 7. Admittedly, the subject land, the detail of which has been given in the preceding paragraphs, was resumed under section 7 of "The Act". In Chapter 5 of the Act ibid, section 15 provides the procedure of disposal of resumed/surrendered lands which reads as under: - "15. Disposal of surrendered land. (1) Land vested in Government under this Act, shall, subject to the provisions of this section, be granted free of charge to the tenants who are shown in the Revenue records to be in cultivating possession of it during Kharif 1976 and Rabi 1975-76;
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Provided that no land shall be granted to a tenant who but for the coming into force of this Act, would have been entitled to inherit land from a person who is required to surrender land under Section 9. (2) Where any tenant who is entitled to grant of land under sub-section (1) already owns land, he shall be granted only so much land which together with the land already owned by him, does not exceed twelve acres. (3) Land which is not granted under sub sections (1) and (2) shall be granted to other landless tenants or persons owning less than twelve acres." Section 16 of the "The Act" imposes certain conditions upon such granted land, which reads as under: - "16. Conditions for grant of land.(1) Grant of land under section 15 shall be made in the following conditions: (a) a grantee or his heirs shall not alienate by sale gift, mortgage or otherwise the land or any portion thereof during a period of twenty years from the date of the grant: Provided that for the purposes of obtaining a loan for the development of the land the grantee or his heirs may mortgage it in favour of Government, a Government sponsored institution or a cooperative society; (b) a grantee or his heirs shall maintain the land in proper state of cultivation and the whole of the land shall be used for the sole purpose of agriculture; (c) a grantee or his heirs shall not sublet the land. (2) The Provincial Land Commission concerned may cancel a grant for violation of any of the terms and conditions of the grant after giving an opportunity of being heard to the grantee or his heirs, as the case may be." 8. Perusal of section 15 of "The Act" ibid provides two types of procedures for allotment/disposal of surrender land. Firstly; under sub rules (1) & (2) that the said surrender land can be granted free of charge to the tenants who are shown in the revenue record to be in cultivating possession of it during kharif 1977 and Rabi 1975-76 and if a tenant who is entitled to grant of land under sub section (1) already owned land, he shall be granted only so much land which together with the land already owned by him does not exceeds 12 acres. Secondly; if the land was not granted under sub sections (1) & (2), it can be granted to other landless tenants or persons owning less then 12 acres land as provided in sub section (3) of Section 15. Section 16 provides that a grantee or his heirs shall not alienate by sale, gift, mortgage or otherwise the land or any portion thereof during the period of 20 years from the date of grant, they shall maintain the land in proper state of cultivation, the whole of the land shall be used for the sole purpose of agricultural and shall not sublet the land. The Punjab Government framed rules with regard to procedure for grant of land vide notification No.LH-II-407-78-550-LC, dated 06th February, 1978 (Punjab Gazette, 6.12.1978) and that rules called the Punjab Land Reforms (Procedure for grant of Land) Rules, 1978 (herein after referred to as "Rules 1978 ). In Chapter II, Rule No.3 describes eligibility for grant and scale of area to be granted. Rule 4 provides procedure with regard to application for grant of land under sub sections (1) & (2) of Section 15 of the Act ibid. Rule 5 describes the procedure upon receiving of application for grant of land under sub section 1 & 2 of Section 15 of the Act ibid. Rules No.3,4 & 5 are reproduced hereunder for ready reference:- 3. Eligibility for grant and scale of area to be granted. Land shown in the Revenue Records to be in cultivating possession of a tenant during Rabi 1975-76 and Kharif 1976 shall subject to the proviso to sub section (1) of Section 15 of the Act and the limitation laid down in sub section (2) of Section 15 thereof be granted to him free of charge. 4. Application for grant of land under sub-sections (1) and (2) of Section 15 of the Act. (1) An application for grant of land under sub sections (1) and (2) of Section 15 of the Act shall be made
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by the tenant eligible in Form LR-1977-IV, Part 1 thereof shall be filed in by the office of the Sub- Assistant Land Commissioner and thereafter the Form shall be delivered to the tenant concerned after making an entry in the Remarks column of Register LR-1977 (III) against the of name of the tenant. (2) The tenant shall fill in Part II of the form and return it to the Sub Assistant Land Commissioner within ten days of its receipt. It will be the duty of the Sub-Assistant Land Commissioner to assist the tenant in filling the relevant part of the form and to collect it from him within the prescribed period. (3) On receipt of Form LR-1977-IV duly filled in, the Sub-Assistant Land Commissioner shall sign the receipt slip at the foot of Form LR-1977. IV and after detaching it return it to the tenant. The office of the Sub Assistant Land Commissioner shall also make an additional entry in the remarks column of Register LR-1977-III about receipt of duly filled a Form LR-1977-IV. 5. Procedure for grant of land under sub-sections (1) and (2) of Section 15 of the Act. (1) The Sub- Assistant Land Commissioner shall verify the facts from the original revenue record of the estates under his control and if necessary by recording other evidence and then make his proposal for grant of land in Form LR-1977-V. to be prepared in quadruplicate. In doing so, the Sub-Assistant Land Commissioner shall keep in view the area in the possession of the tenant and shown against his name in Register LR-1977-III, his choice of area and such other instructions as may be issued, from time to time, by the Chief Land Commissioner. The Sub-Assistant Land Commissioner shall submit his proposal along with original application, to the Deputy Land Commissioner, through the Assistant Land Commissioner of the area. (2) The Assistant Land Commissioner shall make his recommendation in the relevant column of LR-1977-V, in all the copies, and pass it on, along with the application, to the Deputy Land Commissioner. (3) On receipt of proposal and recommendation of the Sub-Assistant Land Commissioner and the Assistant Land Commissioner in Form LR 1977-V, the Deputy Land Commissioner shall after hearing the applicant tenant and considering such objections as may be raised against the recommendation, pass an order in the relevant columns of all copies of LR 1977-V, finalizing the grant. The Deputy Land Commissioner shall announce the order to the applicant-tenant and get his signature or thumb-impression in the relevant column of all copies of the LR-1977-V. (4) One copy of order in Form LR-1977-V, shall be retained in the office of the Deputy Land Commissioner, the second copy shall be sent to the Sub-Assistant Land Commissioner for record, the third copy shall be sent to the Tehsildar concerned, for entries in the revenue records and the fourth shall be given to the applicant-tenant. (5) An up-to-date record showing grant of land under sub-sections (1) and (2) of Section 15 of the Act, shall be maintained in the office of the Deputy Land Commissioner and the Sub-Assistant Land Commissioner in Register in Form LR-1977-VI, to be prepared village-wise. Chapter III deals with procedure for grant of land under sub section (3) of section 15 of the Act ibid. Relevant rules No.6,7,8 & 9 are reproduced hereunder for ready reference and convenience:- 6. General powers of Government. The land available for grant under sub-section (3) of Section 15 of the Act shall also be granted free of charge but the Government retains absolute discretion in the selection of grantees. 7. Priorities for grant of land. (1) The land available for grant under sub-section (3) of Section 15 of the Act shall be granted in the following order of priority: (i) Tenants and other persons of the estate where the land proposed to the grantee is situated, who own less than twelve acres (a) Tenants and self-cultivating owners in the estate, who owns less than five acres of land shall be given preference to others.
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(b) After the claims of tenants and other persons of category (a) have been satisfied, the tenants and self cultivating owners in the estates, who own five acres or more but less than twelve acres of land, shall be considered. (c) If after satisfying the claims of tenants and other persons of category (b) some land is still left the persons who own less than twelve acres of land but are not self-cultivators in the estate, shall be considered. (ii) Tenants and other persons of the estates adjoining the estate where the land proposed to be granted is situated, who own less than twelve acres. (a) If after satisfying the claims of tenants and other persons of the estate concerned, under (i) above some land is still left for grant, then the claims of tenants and self-cultivating owners in the adjoining estates, who own less than five acres of land, shall be considered. (b) If any land is still left, then the tenants and other. persons of the adjoining estates who own five acres or more but less than twelve acres, shall be considered. (2) In deciding the inter se claims of tenants and other persons falling in the same category the one who does not own any land or owns lesser area shall be given preference over others. 8. Scale of area to be granted. A tenant or other person who is eligible for grant of land under sub- section (3) of Section 15 of the Act shall be granted only so much land which together with the land already owned by him does not exceed twelve acres. 9. Applications and Procedure for grant of land under sub section (3) of Section of the Act. (1) A schedule of land available in each village for grant under sub-section (3) of Section 15 of the Act shall be prepared by the office of the Deputy Land Commissioner. Copies of the Schedule shall be pasted at conspicuous places in the village concerned as also on notice boards at tehsil and district headquarters and applications for grant of land shall be invited by the Deputy Land Commissioner from landless tenants of the village concerned and other persons of the same village owning less than twelve acres by a date to be specified in the notice. Wide publicity to this effect shall also be given by beat of drum for a period of seven days in the village concerned. The applicant shall…
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