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Petitioner: MUHAMMAD ILYAS VS Respondent: MUZAFFAR HUSSAIN ShahHonorable Justice Muhammad Qasim LashariSaleem Raza
2005 C L C 56
2005 C L C 56
[Board of Revenue Sindh]
Before Muhammad Qasim Lashari, Member (Judicial)
MUHAMMAD ILYAS and 3 others---Appellants
Versus
MUZAFFAR HUSSAIN Shah and 4 others---Respondents
Appeal No.SROA-41-2002 of 2003, decided on 31st March, 2003.
(a) Sindh Gothabad (Housing Scheme) Act (VII of 1987)---
----Ss. 6 & 9---West Pakistan Land Revenue Act (XVII of 1967), Ss. 161, 164 & 179---Allotment of land---Cancellation of `Sanads'/allotment-- Appeal---Limitation-- Land in dispute was allotted to appellants by Assistant Commissioner/Controller under Sindh Gothabad (Housing Scheme) Act, 1987 by granting `Sanad'/allotment orders---Respondent, had filed application before Deputy Commissioner/Collector for cancellation of allotment/Sanad in favour of appellants wherein he had claimed that land in dispute was his `Qabuli' (Privately owned) land duly entered in Record-of-Rights and that it had been wrongly allotted to appellants under Sindh Gothabad (Housing Scheme) Act, 1987---Deputy Commissioner/Collector got matter inquired through his subordinate Revenue Officers and after inquiry, Deputy Commissioner/Collector dismissed application of respondent as he could not prove his alleged entitlement in respect of land in dispute---Respondent being aggrieved by order of Deputy Commissioner/Collector filed appeal before Commissioner, and Commissioner treated said appeal as an application for revision under 5.164 of West Pakistan Land Revenue Act, 1967-- "Validity---Deputy Commissioner/Collector had passed order under provisions of Sindh Gothabad (Housing Scheme) Act, 1987 which had its own provision of appeal in its section 9, Ss.161 & 164 of West Pakistan Land Revenue Act, 1967 thus, were not applicable in the matter-- Commissioner after hearing both parties rejected their claim in respect of the property---Being dissatisfied with order of Commissioner, appellants who initially were allotted the land under Sindh Gothabad (Housing Scheme) Act, 1987 filed belated appeal before the Board of Revenue but they could not explain satisfactorily said inordinate delay in filing appeal---Appeal, apart from being hopelessly time-barred, was otherwise incompetent and without jurisdiction, and thus, was dismissed.
1980 SCMR 875 ref.
(b) Limitation Act (IX of 1908)---
----S. 5---Delay---Condonation of---In the matter of condonation of delay in availing legal remedies, each day's delay had to be explained satisfactorily.
Saleem Raza for Appellants.
ORDER
This is an appeal filed on 24-5-2002 against order, dated 27-2-2001 passed by the then Commissioner, Sukkur Division. The time prescribed under section 162(c) of the Sindh Land Revenue Act, 1967 for filing an appeal before the Board of Revenue is 90 days. Hence, the appeal is time-barred by 11 months and 24 days. The appellant has filed application under section 5 of the Limitation Act, 1908 along with an affidavit for the condonation of delay.
2. Brief facts of the case are that Muzafar Hussain Shah (respondent No. 1) filed an application before the then Deputy Commissioner, Naushahroferoze for the cancellation of Sanads (allotments/grants) issued to Muhammad Ilyas Bhatti and others residents of Village Ali Ratto Bhatti, Deh Dali, Taluka Bhiria, District Naushahroferoze issued by the then Assistant Commissioner/Controller, Naushahroferoze under the Sindh Gothabad (Housing Scheme) Act, 1987 (hereinafter referred to as the Act, 1987). His contention was that the land bearing Serial Nos.743 and 744 of Deh Dali, Taluka Bhiria, District Naushahroferoze (hereinafter to be referred as the disputed land) is his Qabuli (privately owned) land duly entered in the Record-of-Rights vide Entry No.403, dated 3-11-1996 in V.F. VII-B of Deh Dali and it has been wrongly allotted to Messrs Muhammad Ilyas and others, under Sindh Gothabad Scheme by issuing Sanads to the villagers which may be cancelled in the interest of justice.
3. Though, the applicant did not mention the relevant provision of Law, yet from the contents of the application and prayer made therein, it is obvious that the aforesaid application made by Muzafar Hussain Shah was under section 6 of the Act, 1987 which is reproduced as under:--
"6. Notwithstanding the allotment of land or conferment of proprietary rights in respect thereof the District Officer (Revenue) may, after giving the allottee or grantee an opportunity of being heard, cancel the allotment or grant and resume the land if he is satisfied that the allottee or grantee has:--
(a) furnished wrong information, for securing allotment or grant; or
(b) committed a breach of the conditions of the allotment or grant:
Provided that before the land is resumed for breach of any conditions of the allotment or grant the allottee or grantee may be given reasonable time to rectify such breach."
4. The then Deputy Commissioner/Collector (now District Officer (Revenue), Naushahroferoze heard the parties and also got the matter inquired through his subordinate Revenue Officers. In this context, the Mukhtiarkar, Gothabad vide his letter No.SGA/32 of 1999, dated 2-6-1999 (Photostat copy produced before me) reported the facts to the then Deputy Commissioner/Collector, Naushahroferoze as under:--
`The facts are that Serial Nos.743/744 of Deh Dali Taluka Bhiria has been utilized under Sindh Gothabad Scheme and the Sanads were issued to the residents of village for residential purpose. At the time of issuance of Sanads, the above Serial Nos. were Government land as is evident from the Gothabad record After lapse of about 8 years, above named person appeared before Assistant Commissioner, Naushahroferoze claiming the said land stating that it has been granted by the Barrage Authority to his grandfather. He produced "A" Form before the A.C. who passed order showing the proprietary right of applicant on the strength of "A" From issued by Barrage Department issued in year 1946.
As a rule of law, "A" Form does not confer the title of the land in respect of any grantee. He, therefore, cannot claim the right of ownership unless T.O. is issued by the C.O. Barrage Department.
In view the above facts the A.C.'s order does not carry weight in the eye of law. The applicant has failed to get T. O. Form from the concerned Department within period of 53 years. Till issuance of T. O. Form, he cannot claim ownership."
5. The Mukhtiarkar Naushahroferoze in pursuance of verbal orders of the then Deputy Commissioner/Collector, Naushahroferoze verified the record of Deh Dali as well as the papers available in the office of Gothabad to know the factual position regarding utilization of Qabuli land by issuance of Sanads under Gothabad Scheme to various persons. He, vide his letter No:Sett/43 of 99, dated 10-9-1999 (Photostat copy produced before me), made the following report to the then Deputy Commissioner/Collector, Naushahroferoze:--
"The following points/issues were kept in mind while verification of record etc.
(1) Whether the land bearing Serial Nos.743 and 744 of Deh Dali is Kabuli land owned by applicant?
(2) Whether the Sanads issued to various persons under Gothabad Scheme, were issued from Kabuli land?
(3) Whether any action of acquisition of land, as required under relevant rules, was taken prior to issuance of the said Sanads?
(4) Whether the plea of the applicant that his Kabuli land has been utilized illegally, is correct or otherwise?
The above points were kept in mind while checking the relevant record, and it was found that the land bearing Nos.743 and 744 of Deh Dali is Kabuli land belonging to the applicant party. Hence the Sanads issued from Kabuli land are worth to be cancelled.
There is nothing on record that any action for acquirement of the said land was taken by the concerned authority, as such the legal rights of the applicant about ownership of land seem to be usurped by utilizing the area of the owners.
The plea of the applicant about ownership of the land in question stands proved from the entries made in the record-of-rights, as such the final point No.4 is also replied in affirmative that his area was used illegally.
In view of the above facts, it is suggested that the Sanads involving Kabuli land may kindly be ordered to be cancelled in the interest of justice."
6. The then Assistant Commissioner, Naushahroferoze vide his letter No. JC of 1999, dated 3-12-1999 (Photostat copy produced before me) made the following report to the then Deputy Commission. Naushahroferoze:-
"In continuation to this office letter No. under reference (Photostat copy enclosed) it is submitted that the undersigned has reverified the actual facts from the relevant record called from the office of the Survey Superintendent, Khairpur, Barrage Mukhtiarkar. Naushahroferoze and Mukhtiarkar Bhiria and found that the disputed S.Nos.743 and 744 of Deh Dali Taluka Bhiria are the property of applicant party out of which an approximate area of 2-0 Acres has been occupied by the inhabitants of village Ali Rato Bhatti. The landowners after long discussion agreed to get compensation of area involved in village/under occupation of villagers but they claimed Rs.1,00,000 one lac only per acre which may be justified on the face of prevailing rates in Deh but is beyond the paying capacity of villagers.
The opponent party i.e. villagers have agreed to pay reasonable rate of area involved in their village and disclosed that at this stage they cannot vacate the said area as their shifting would cause them huge and irreparable losses.
Keeping in view of the above facts it is submitted that the matter regarding compensation may be got resolved through mediator who could bring the parties to amicable settlement at the payment of compensation of disputed area keeping in view the paying capacity of villagers."
7. The learned Deputy Commissioner, Naushahroferoze during the proceedings asked the applicant to produce T.O. Form and furnish other documentary proof about the ownership of the disputed land but the applicant did not produce the copy of T.O. Form. The learned Deputy Commissioner, Naushahroferoze did not accept the documents produced by the applicant viz. entries in the record of rights, pass-book, issued by the Revenue functionary, etc. The learned Deputy Commissioner, Naushahroferoze relied on the version of the appellant (Muhammad Ilyas and others) who produced the Sanads issued to them under the Act, 1987 during the year 1989 and stated that their village exists in S.Nos.712, 743 and 744, being Na-Qabuli Government land since their forefather since the year 1941 and they are residing in the said village spread over an area of 11-09 acres including " Asaish" area and ditch for drainage water and that the applicant (Muzafar Hussain Shah) has got no claim over the said land and he had managed the forged documents and has put his claim after a long period at this belated stage. The learned Deputy Commissioner, Naushahroferoze held that the claim of the applicant about grant of disputed land from the Barrage Department stands disproved as he has not been able to produce T.O. Form issued by the concerned authority. The learned Deputy Commissioner disposed of the application vide his order dated 28-2-2000 which was endorsed to the parties vide No.803, dated 4-3-2000. The concluding para. of the said order dated 28-2-2000, is reproduced as under:--
"Summing up the facts brought on record and the failure of the applicant to produce copy of T.O. Form in support of his) version that the land bearing S.Nos.743/744 was barrage land) and was granted to his elders, clearly show that the plea of the applicant stands shattered and I have come to the conclusion that the prayer of the opponents for maintenance of the area occupied for- village site is reasonable and genuine. Hence the land bearing S.Nos.712, 743 and 744 having total area 11-05 acres of Deh Dali Taluka Bhiria are reserved for the Village Ali Rato Bhatti already existing on site. With these observations, the matter stands decided."
8. Being aggrieved by the above order dated 28-2-2000 of the Deputy Commissioner; Naushahroferoze whereby he reserved an area of! 11-05 acres from. S.Nos.712, 743 and 744 (disputed land) of Deh Dali for village Ali Rato Bhatti, Muzaffar Hussain Shah filed Appeal No.S-7-RC of 2000 before the learned Commissioner, Sukkur Division (defunct) against Muhammad Ilyas Bhatti, Wazir Bhatti, Darya Khan, Siddique and Deputy Commissioner, Naushahroferoze (respondents Nos. 1, 2, 3, 4 and 5 respectively). The learned Commissioner treated the appeal as an application for revision under section 164 of the Sindh Land Revenue Act, 1967.
9. It is pertinent to point out that the order passed by the then Deputy Commissioner/Collector, Naushahroferoze was under the provisions of Act, 1987. The Act, 1987 has its own provision of appeal which is described under section 9 of the Act and sections 161 and 164 of the Sindh Land Revenue Act, 1967 (Appeal and Revision) have no application whatsoever, in the matters decided under the provisions of the Act, 1987. Section 9 of the Act, 1987 as amended vide Sindh Laws (Amendment) Ordinance, 2001, is reproduced as under:--
"9(1) An appeal shall lie to the D.O. (Rev.) of the District from any order passed by any officer under this Act and to the Executive District Officer (Revenue) from the order passed by the District Officer (Revenue) not being an appellate order of the District Officer (Revenue).
(2) Appeal under subsection (1) shall be heard and disposed in the manner as may be prescribed "
10. Obviously, the mat before the then Commissioner was neither an appeal under section 161 nor an application of revision under section 164 of the Sindh Land Revenue Act 1967 but it was an appeal under section 9(1) of the Act, 1987.
11. The learned Commissioner, Sukkur Division (defunct) after hearing both the parties, disposed of the appeal/application vide his order, dated 27-2-2001, the last two, concluding paragraphs, of the order, are reproduced as under:--
"I have heard the parties and perused the record. The Deputy Commissioner, Naushahroferoze was asked to carry out the measurement of the village Ali Ratio Bhatti situated in S.Nos.743 and 744 of Deh Dali, who has reported that an area of 1-36 acres from S.Nos.744 and 0-38 acres from S.No.743 total area 2-34 acres is under the said village and that the petitioners have agreed that area coming under the village may be allowed to be utilized for easement of villagers of Village Ali Ratio Bhatti.
In view of the above report of the Deputy Commissioner, Naushahroferoze that the above village is situated over an area of 2-34 acres from S.Nos.743 and 744, the said area is allowed to be retained for the village Ali Ratio and the remaining area out of an area of 11-05 acres is excluded from area of village and it shall stand restored in the names of respective owners. The appeal is disposed of accordingly."
12. Being dissatisfied with the above order, dated 27-2-2001 of the learned Commissioner, Muhammad Ilyas and 2 others filed the present appeal which is time-barred by 11 months and 24 days.
13. I have heard the parties at length Mr. Saleem Raza, the learned counsel for the appellants submitted his written arguments dated 8-1-2003 and additional arguments on behalf of appellants stating that in the year 1946-47, Alim Shah was granted an area of 20-00 acres out of U.A. No.429 vide "A" Form No.7241 but no sketch was prepared by any authority. He was also granted S. Nos.608, 347, 348, 609 and 630 total area 18-26 acres vide A" Form No.7137. The contention of the learned counsel is that both these grants were "lease" and not on "harap basis". His further contentions are as under:--
(a) As regards the land granted vide "A" Form No.7137 Syed Ali Shah paid five instalments towards lease money upto 22-5-1956 the land was cancelled but through a fraud, the note of cancellation was defaced and a note was put that T.O. Form No.78750 was issued on 9-9-1965.
(b) As regards the land granted vide "A" Form No.7241, Syed Ali Shah paid five instalments. The land was subsequently cancelled but the grant is shown fully paid on 10-5-1980. No T.O. Form is issued and therefore, the grant is not Qabuli. According to basic entry No.283, S.Nos.743 and 744 are entered afterwards in different handwriting and with different ink.
(c) The village Ali Ratoo Bhatti is established since 150 years and consist of more than 100 houses. The villagers have been issued 5anads under the Gothabad Housing Scheme.
(d) That according to "A" Form produced by opponents the total amount with penal interest was paid of Rs.1,903.14 for 41-00 acres, whereas the amount of lease was fixed Rs.3,025 for 27 acres only without penal interest. Area of 20 acres which was granted to the respondent out of U.A. No.429 was not reduced but was actually increased from 20 acres to 34-03 acres, according to Ghat Wadah Form which the respondents produced. Therefore, the note on "A" Form which shows the land fully paid, is not authenticated and does not support the contention of other-side that grant was fully paid. The respondents Nos. 1 to 3 have not produced any receipt which was paid for the remaining amount.
(e) The Revenue Officer/Assistant Revenue Officer was not competent to regrant the land after lapse of 30 years.
(f) According to Pass Book, the S. No.744 is also mortgaged with Agricultural Development Bank of Pakistan, Naushahroferoze Branch by Jamil son of Karmoo on 8-11-1984, and it shows that there is a number of the manipulations in the Revenue Record of the District Naushahroferoze.
14. The contentions of the respondents Nos.1 to 4 are that Syed Alim Shah was granted the land on full rate vide "A" Form Nos.7241 and 7137 from Kharif 1946-47. The land granted vide "A" Form No.7241 is asunder:--
(a) He was granted S.No.613 (2-34 acres) and S. No.614 (4-11 acres) at the-rate of Rs.2,001 per acre per annum in five equated instalments. The total sale price was fixed Rs.1,425.
(b) He was granted an area of 20-00 acres from U.A. No.429 at the rate of Rs.80 per acre per annum in five equated instalments total sale price was fixed Rs.1,600. The land was subsequently surveyed and S. Nos.429 (16-29 acres), 739 (2-5 acres), 740 (7-00 acres), 741 (6-26 acres) 742 (2-19 acres), 743 (7-1 Acres), 744 (3-1 acres) and 745 (5-31 acres) were formed out of the said U.A No.429.
15. The above grants were purportedly made under section "B", Part 1, Standing Order No. 10 of the Standing Orders of the Revenue Department, It is true that the grant made vide "A" Form No.7241 was cancelled from Rabi 1948-49 under A.R.Os. Order No.6175 dated 25-3-1950 but it was subsequently, regranted under Assistant Revenue Officers (AROs, No.665, dated 15-5-1951. The year of regrant is disputed. The version of appellant is that it is 1981 whereas the version of the respondents Nos. 1 to 4 is that it is 1951. The confession is that the figure "5" is also readable as "8". In the photo stat copy of "A" Form Na.7241 produced by the appellant which differs from the copy of said "A" Form No.7241 produced by respondents Nos.1 to 4, the contention of the appellants is that the year of regrant is readable as 1981. The copy produced by the appellant is an unattested copy hence not admissible whereas the copy of "A" Form No.7241 produced by the respondents Nos.1 to 4, is duly attested. From the attested copy of "A" Form produced by the respondents, it can be presumed that the land was regranted on 15-5-1951. Had it not been regranted in May, 1951, the then Barrage Authorities would have not accepted the 5th and final instalment on 23-11-1951 and the land in those days would have not been alienated in the name of grantee (Syed Alim Shah): This being the position that the land was fully paid 23-11-1951, there was no question of issuance of T.O. Form because as held in SROR-1488 of 1969-70 (Jalal v. Sajjan) published at page No. 120 of the Sindh Revenue and Land Reforms decision published by the Sindh Land Commission (1980), the condition requiring issue of T.O. Form before the alienation was incorporated in the agreement form vide memo. No.57-67/1850-P-III, dated 5-9-1967 of the Government of West Pakistan, Land Utilization Department and therefore, alienation after payment of full price but before issue of T.O. Form (prior to issue of Notification dated 5-9-1967) was not void. Under these circumstances, non-issuance of T.O. Form in respect of a land having been fully paid in the year 1951 and entered in Record-of-Rights vide first Entry No. 184 cannot be formed a base to hold that the disputed land is not a Qabuli land unless it would have been proved beyond any shadow of doubt that the disputed land after its cancellation vide the then A.R.O.'s Order No.6175, dated 25-3-1950 has never been regranted to Syed Alim Shah and that the entries in the "A" Form No.7241 respecting regrant and the entries in the Record-of-Rights in respect of disputed land in favour of Syed Alim Shah and his legal heirs and subsequent successors in interest including respondents Nos. 1, 2 and 3 are bogus and forged. Whenever it is proved that a glaring fraud has been played and a forgery in the Revenue Record in connivance of subordinate Revenue functionaries has been committed, no one could prevent the Executive District Officer (Revenue) from exercising his suo motu revisional jurisdiction strictly as per. law. There is another misunderstanding whether U.A. No.429 had been surveyed or not. It is evident from the reports of the Survey Superintendent, Khairpur vide his letter No. ZB/96 of 2003, dated 27-1-2003 and No. ZB.133 of 2003, dated 8-2-2003 and the attested copies of the Ghat Wadh Form No-37 that U.A. No.429 was surveyed under the orders of the then Deputy Collector N-Feroze vide No. 1207, dated 21-1-1952 and No.2710, dated 16-1-1952. The net survey numbers (excluding Kharaba) formed out of the above U.A. No.429 and S.No.739 (2-5 acres), 740 (7-0 acres), 741 (6-26 acres), 742 (2-19 acres), 743.(7-1 acres) and 744 (3-1 acres). The Survey No.745 (5-31 acres) and S. No.429 (16-29 acres) are also formed out of the said U.A. No.429 but these two survey numbers are shown under "Kharabo". It is thus, obvious that U.A. No.429 was surveyed and the disputed S.Nos.743, 744 were formed out of U.A. No.429 which were granted to Syed Alim Shah vide "A" Form No.7241 from Kharif 1946-47. The grant is said to have been fully paid on 23-11-1951. The land was mutated in V.F. VII, vide Entry No.284 (date is not shown). Syed Alim Shah died and Foti Khatabadal was made vide Entry No.6, dated 17-2-1987 of V.F. VII-A in the names of following legal heirs:--
(1) Asghar Shah (son)
0-25 Paisa
(2) Talib Shah (son)
0-25 Paisa
(3) Arif Hussain Shah (son)
0-25 Paisa
(4) Mst. Zainab Bibi (daughter)
0-12-1/2 Paisa
(5) Mst. Sughran Bibi (daughter)
0-12-1/2 Paisa
Total
1-00 Rupee
18. The disputed land has changed the hands as is evidence from Entries No.241, dated 4-3-1987, No.352, dated 4-3-1987 and Entry No.403, dated 3-11-1996 whereby it was purchased by the respondents Nos. 1 to 3. It had also been mortgaged with A.D. B.P. and subsequently, returned vide Entry No.433, dated 8-11-1997 in V.F. VIII-B: It would be seen that nobody right from the beginning (say the year 1946) till today, has formally challenged the original grant made in the year' 1946 or has preferred any appeal or revision against any of the above mentioned entries existing in Record-of-Rights. Insofar as the present appeal is concerned it, as earlier discussed in paras.9 and 10 (ibid), is purportedly an appeal filed under section 9 of the Act, 1987. The present matter before me is not that of the Record of Rights but it is purely against the order dated 27-2-2001 of the then Commissioner, Sukkur concerning the issuance of Sanads and reservation of certain area as "Asaish" under the Act, 1987.
19. The impugned order is dated 27-2-2001 whereas the present appeal is filed on 24-5-2002. Excluding the 27th February, 2001, the day from which the, period is to be reckoned as required in section 12 of the Limitation Act, 1908, the period of filing of appeal is worked out as under:--
February, February, 1991
1 day
March, 1991
31 days
April, 1991
30 days
May, 1991
31 days
June, 1991
30 days
July, 1991
31 days
August, 1991
31 days
September, 1991
30 days
October, 1991
31 days
November, 1991
30 days
December, 1991
31 days
January, 1992
31 days
February, 1992
28 days
Match, 1992
31 days
April, 1992
30 days
May, 1992 (upto 23rd)
23 days
Total
451 days
20. Excluding the period of 90 days for filing of appeal vide section 162 of the Act, 1967, the net delay in filing the appeal is worked out as 361 days (451-90-361). It is a settled law that in the matter of condonation of delays in availing legal remedies, each days delay has to be explained satisfactorily. In his written arguments, the learned…
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