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Official Citation: 1965 PLD 429
Court / Jurisdiction: Supreme Court of Pakistan
Year of Decision: 2018
Decision Date: 2018-12-31
Petitioner: Regarding functioning of Patwaris, Kanungos and Tehsildars in urban area JUDGMENT
This judicial decision was delivered by the Supreme Court of Pakistan on 2018-12-31. The matter involves proceedings between Regarding functioning of Patwaris, Kanungos and Tehsildars in urban area JUDGMENT and Respondent, officially reported as 1965 PLD 429. The court reviewed applicable Pakistani statutes, procedural requirements, and governing case-law authorities. The full text below contains the complete facts, arguments, and legal reasoning rendered by the honorable bench.
Case cited as PLD 1965 Lahore 429
Court Name: Supreme Court of Pakistan Judge(s): Ijaz-ul-Ahsan, Mian Saqib Nisar, Faisal Arab Title:Regarding functioning of Patwaris, Kanungos and Tehsildars in urban area
JUDGMENT
Reported As: KLR 2019 Supreme Court 241, PLD 2019 Supreme Court 297 Result: Order accordingly Judgment JUDGMENT MIAN SAQIB NISAR, CJ.- The instant matter arises from a suo mow notice taken pursuant to various complaints that despite the fact that Lahore is an urban area and thus not subject to land revenue, revenue authorities are functioning therein and entering mutations, etc. A report was called from the Senior Member, Board of Revenue (MBR), Punjab requiring him to explain, inter alia, under what authority of law are Patwar Circles, Kanungos and Tehsildars established and how transactions in the alleged revenue Record are being maintained or changed. Pursuant thereto, a report was submitted stating the following:- i. Within the District of Lahore there are 363 estatts/mauzas in Tehsils Raiwind, City, Cantonment, Shalimar and Model Town; ii. Out of these estates, 246 are under settlement, three are under consolidation of holdings operation and the remaining 114 are urban; iii. The land records of 218 estates in Lahore District have been computerized and the Board of Revenue, Punjab has already issued notifications under Section 41-A(2) of the Punjab Land Revenue Act, 1967 (the Act of 1967); iv. Sections 41-A and 41-B of the Act of 1967 deal with preparation of computerized records; v. Section 42 thereof deals with the procedure of manual mutation by the revenue field officers; vi. Section 42-A thereof deals with computerized mutation at the Arazi Record Centres at Tehsil level; vii. The Arazi Record Centers at the Tehsil level established under the Punjab Land Records Authority Act, 2017 deal with computerized land revenue record; and
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viii. Since the land record of 218 estates in Lahore District has been computerized while the remaining 145 are yet to be computerized, therefore, Patwaris, Kanungos and Tehsildars are dealing with mutations and maintaining the revenue record in the light of the instruction issued by the Board of Revenue under the purview of the Act of 1967 and the Punjab Land Record Manual (Second Edition 1958). Notices were also issued to the other provinces for their input. The Senior MBR, KPK in his report has submitted that the Act of 1967 is applicable in the Province of KPK since 1974. The urban areas have already been earmarked in the Shajra Aks as Laal Lakeer' and hence the sub-Registrar of each District under Section 17 of the Registration Act, 1908 (Act of 1908) is dealing with properties of urban areas and maintaining its record. However, the only record being maintained by the Patwari, Kanungos, Tehsildars, by way of Aks Shajra and Massavi is to the extent of roads and drainage system owned by the government or local authorities, whereas, the revenue record being maintained by the Patwaris, Kanungos, Tehsildars is regarding the rural area(s). The Revenue and Estate Department prepare the land record at the time of settlement through the settlement staff whereafter it is handed over to the concerned District Revenue Agency on completion. Whereas in urban areas the post of Sub-Registrar has been created at the district level to register documents under the Act of 1908 including property documents by registering sale deeds. As far as the local area authorities are concerned, the land is transferred to the concerned local area authority through a mutation whereafter subsequent transactions are carried out by other concerned authorities. Revenue Officials like Patwaris, Girdawars, etc. have no role in transactions falling within the domain of such areas. In the report submitted by the Board of Revenue, Balochistan, it is stated that under Section 6 of the Act of 1967 the Government of Balochistan is empowered to create Patwar Circles in the urban area, which have been created vide notifications issued from time to time. It is further submitted that Section 3(2) thereof authorizes the Board of Revenue to issue general or special orders to the Collector, to determine for the purposes of the said Act, "what lands are included within the site of a town or village, and to fix and from time to time to vary the limits of the same, regard being had to all the subsisting right of the land-owners"; however, the record of the Board of Revenue, Balochistan is silent to the extent of issuance of general or special orders in this behalf. Besides, the Transfer of Property Act, 1882 (Act of 1882) is not applicable in the Province of Balochistan, whereas, the record of rights is established in urban and rural areas under Section 116 of the Act of 1967. 2. Before proceeding further it would be appropriate to consider the relevant provisions of the Punjab Land Revenue Act, 1887 (Act of 1887), the Act of 1967 and the Punjab Local Government Act, 2013, which read as under:- The Punjab Land Revenue Act, 1887 3. Definitions.- (1) "estate" means any area-- (a) for which a separate record-of-rights has been made; or (b) which has been separately assessed to land revenue, or would have been so assessed if the land-revenue had not been released, compounded for or redeemed; or (c) which the Local Government may, by general rule or special order, declare to be an estate; 4. Exclusion of certain land from operation of Act.- (1) Except so far as may be necessary for the record, recovery and administration of village cesses, nothing in this Act applies to land which is occupied as the site of a town or village and is not assessed to land revenue. (2) A Revenue Officer may define, for the purpose of this Act, the limits of any such land". 31. Record of rights and documents included therein.- (1) Save as otherwise provided by this Chapter, there shall be record of rights for each estate. (2) The record of rights for an estate shall include the following documents, namely:- (a statements showing, so far as may be practicable,-
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(i) the persons who are land owners, tenants or assignees of land revenue in the estate , or who are entitled to receive any of the rents, profits or produce of the estate or to occupy land therein;- ........ (d) such other documents as the Financial Commissioner may with the previous sanction of the Provincial Governments, prescribe. The Punjab Land Revenue Act, 1967 3. Exclusion of certain land from operation of this Act.-- (1) Except so far as may be necessary for the record, recovery and administration of village cess, or for purposes of survey, nothing in this Act applies to land which is occupied as the site of a town or village, and is not assessed to land revenue. (2) It shall be lawful for the Collector acting under the general or special orders of the Board of Revenue, to determine for the purposes of this Act, what lands are included within the site of a town or village, and to fix and from time to time to vary the limits of the same, regard being had to all the subsisting rights of the land-owners." 4. Definitions.- (9) "estate" means any area- (i) for which a separate record-of-rights has been made; or (ii) which has been separately assessed to land-revenue; or (iii) which the Board of Revenue may, by general rule or special order, declare to be an estate; 39. Records-of-rights and documents included therein.- (1) Save as otherwise provided by this Chapter there shall be a record of rights for each estate. (2) The record-of-rights for an estate shall include the following documents, namely:- (a) statements showing, so far as may be practicable: (1) the persons who are land-owners or who are entitled to receive any of the rents, profits or produce of the estate or to occupy land therein; ....... (d) such other documents as the Board of Revenue may, with the previous approval of Government, prescribe. 56. Assessment of land revenue.-- (1) All land, to whatever purpose applied and wherever situated, is liable to the payment of land revenue to Government, except-- (a) such land as has been wholly exempted from that liability by special contract with Government, or by the provisions of any law for the time being in force; (b) such land as is included in village site; (c) such land as is included in Cantonment limits; (d) land on which property tax under the Punjab Urban Immovable Property Tax Act, 1958 (W. P. Act V of 1958), is payable; 116. Revenue survey may be introduced by Board of Revenue in any part of Province.-- (1) It shall be lawful for the Board of Revenue, whenever it may deem expedient, to direct by notification, the survey of any land in any part of the Province with a view to the settlement of land revenue, the preparation of record-of-rights and preservation thereof, or for any other similar purpose, and such survey shall be called a revenue survey. (2) A revenue survey may extend to the lands of any village, town, or city generally, or to such land only as may be specified in the notification. (3) Subject to the orders of the Board of Revenue, it shall be lawful for the officers conducting any such survey to except any land to which it may not seem expedient that such survey should extend. The Punjab Local Government Act, 2013 2. Definitions.- In this Act- (hhh) "urban area" means an area within the jurisdiction of the Metropolitan Corporation, a Municipal Corporation, or a Municipal Committee and includes any other area which the.
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Government may, by notification, declare to be an urban area for purposes of this Act: 6. Local areas.- (2) For purposes of this Act, the Government shall, by notification, demarcate and declare a local area consisting of: (a) Lahore District as the Metropolitan Corporation; (b) rural area in a District, other than Lahore District, as District Council; 3. As per Section 4 of the Act of 1887, the land which is occupied as the site of a town or village and is not assessed to land revenue is expressly excluded from the ambit of the said Act, except where doing so may be necessary for the purposes of record, recovery and administration of village cesses. The said Act was repealed through the Act of 1967, however, a similar exclusion was provided in Section 3 thereof, wherein the land which is occupied as the site of a town or village and is not assessed to land revenue has been exempted from the operation of the said Act except where its application was necessary for the purposes of record, recovery and administration of village cesses. 4. Besides, Section 31 of the Act of 1887 dealt with the record of rights and documents included therein, providing inter alia that there shall be a record of rights for each estate which shall, so far as may be practicable, include statements showing the persons who are land owners, tenants or assignees of land revenue in the estate, or who are entitled to receive any of the rents, profits or produce of the estate or to occupy land therein; statements reflecting the nature of the interests of such persons and conditions attached to such interests; rent, land revenue, rates, cesses or other payments due from and to each of these persons and/or to the Government; a map of the estate; and such other documents as the Financial Commissioner may prescribe with the previous sanction of the Provincial Governments. The said Section was re-enacted with slight modification as Section 39 in the Act of 1967 which more or less contained the same requirements for entry into the record-of-rights however the previous sanction to be acquired from the Government in order for the Finance Minister to prescribe any additional documents was now to be acquired from the Provincial Government instead. Specific exclusion from payment of land revenue is given in Section 56(2) of the Act of 1967 which provides that land included in village sites, land that has been wholly exempted from that liability on account of a special contract with the Government, or by the provisions of any law for the time being in force, land which is included in Cantonment limits and land on which property tax under the Punjab Urban Immovable Property Tax Act, 1958, is payable are all exempted from the payment of land revenue under the Act of 1967. Additionally, Section 116 thereof provides that a revenue survey may be conducted of any land in any part of the Province with a view to the settlement of land revenue by the Board of Revenue whenever it may deem such survey expedient. This revenue survey may extend to the lands of any village, town, or city generally, or to such land only as may be specified in the notification issued in this regard, however the Board may through its orders exempt any land from such survey. 5. The key term used in the aforementioned provisions is "land", which has neither been defined in the Act of 1887 nor the Act of 1967, therefore, the same is liable to be construed from other relevant statutes and/or in light of its ordinary dictionary meaning. As per Section 4(1) of the Punjab Tenancy Act, 1887, "land" means "land which is not occupied as the site of any building in a town or village and is occupied or has been let for agricultural purposes or for purposes subservient to agriculture or for pasture, and includes the sites of buildings and other structures on such land", The term "land" has also been defined in the Land Reforms Regulation, 1972, to mean land which is not occupied as the site of a town, village, factory or industrial establishment, and is occupied or has been or can be let for agricultural purposes allied or subservient to agriculture and includes the sites of buildings and other structures on such land. The term "land" has been defined in Section 2(3) of the Punjab Alienation of Land Act, 1900 to mean, "land, which is not occupied as the site of
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any building in a town or village and is occupied or let for agricultural purposes or for purposes subservient to agricultural or for pasture, and includes (a) the sites of buildings and other structures on such land; (b) a share in the profits of an estate or holding; (c) any dues or any fixed percentage of the land revenue payable by an inferior land-owner to a superior land-owner; (d) a right to receive rent; (e) any right to water enjoyed by the owner or occupier of land as such; g) any right of occupancy; and (g) all trees standing on such land". As per the judgment of Ghulam Rasul v. lkram Ullah (PLD 1965 Lahore 429), relying on Vir Bhan and another v. Sham Singh and others (AIR 1944 Lahore 455) it was held that the term "land" in Section 141 of the Punjab Land Revenue Act (XVII of 1887) has a special and restricted meaning and does not comprise site assessed to land revenue on which buildings with structures of a permanent character have been constructed. 6. Adverting to the dictionary meanings of "land", according to Black's Law Dictionary (Ninth Edition), it means "an immoveable and A indestructible three-dimensional area consisting of a portion of the earth's surface, the surface above and below the surface, and everything growing on or permanently affixed to it. An estate or interest in the real property". In Chambers 21st Century Dictionary it is defined as "the solid part of the Earth's surface as opposed to the areas covered by water" and "ground that is used for agriculture". As mentioned in Wharton's Law Lexicon (Fourteenth Edition) "the word land used in its generic terms comprehends every species of ground, soil, or earth or whatsoever as meadows, pastures, woods, moors, waters, marshes, furze and heath. It includes also houses, mills, castles and other buildings for the conveyance of the land the structure upon it also passes. ". From the above dictionary as well as statutory definitions, it is established that the term land includes within its meaning buildings and structures etc., and thus includes land falling within the ambit of Punjab Urban Immoveable Property Tax Act, 1958. Therefore, the exemption to such land to paym ent of land revenue under Section 56(2) of the Act of 1967 applies to all such urban property falling within the ambit of the said Act. 7. Section 4 of the Act of 1887 has been explained by Om Prakash Aggarwala in the third edition of his commentary thereof as under:- "It is usual to measure the village site in one number, together with the small plots attached in which cattle are penned, manure a stored, and straw is stacked, and other waste attached to the 'village site. The entry in the column of ownership and occupancy is simply abadi deh. In the shajras this number is inked in red so that in common parlance abadi deh is known as the area within the lal lakir. Land included within Municipal limits: - It must not be assumed that merely because a definite area of land which is not assessed with land revenue happens to have been included, for jurisdictional purposes within the limits of a Municipal Committee, ipso facto becomes the site of a town, and the act of including it within Municipal limits makes it the site of a town or village within the meaning of section 4 of the Land Revenue Act, so as to oust the jurisdiction of the revenue officer over such land. Every case must be decided on its merits [Jiwa v. Karam Baksh 1925 L. L. T3 =1925 P. C. L. I (Rev. .)] Thus, it is clear that any land that is occupied as the site of a town or village and is not assessed to land revenue is exempt from the operation of the provisions of the Act of 1967. However, as is evident from the above commentary (regarding Section 4 of the 1887 Act in India which is pari materia to Section 3 of Act of 1967), every case must be decided on its merits and the mere inclusion of a certain area within a town/village for jurisdictional purposes does not trigger the exemption from land revenue under the law. For instance, the construction of a house on one single field does not convert land otherwise subject to land revenue, into the site of a town or village. Similarly, where the area is under fluctuating assessment and if during the currency of a settlement of a particular part of the land is used for purposes other than agriculture, it is not excluded under
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Section 3(1) of the Act of 1967. 8. Further to the foregoing discussion, the definition of the word "estate" under Section 3(1) of the Act of 1887 must be noted which includes (1) any area for which a separate record-of-rights has been made; (2) or which has been separately assessed to land revenue; or (3) would have been so assessed if the land-revenue had not been released, compounded for or redeemed; or (4) which the Provincial Government may, by general rule or special order, declare to be an estate. The same definition of "estate" has been given in Section 4(9) of the Act of 1967. Reference in this regard may be made to paragraph No,123 of Douie's Settlement Manual (Fourth Edition issued in 1930), wherein the terms mauzas or villages and mahals or estates have been explained as under:- 123. Mauza or villages and mahals or estates.-- Before describing the village community it will be convenient to explain exactly what is meant by the two terms mauza, which is usually translated "village," and mahal, of which the English equivalent is "estate. " A mauza is defined by Mr. Thomason as "a parcel or pastels of land having a separate name in the revenue records and known limits," and a mahal as "any parcel or parcels of land which may be separately assessed with the public revenue, the whole property of the persons settled within the mahal being held hypothecated to Government for the sum assessed upon it." There are two elements in this definition, the separate assessment and, where more than one person own the same estate, their joint responsibility for the payment of its revenue. "Village" is not defined in the Land Revenue Act, but the meaning of "estate" is explained to be "any area-- (a) for which a separate record of rights has been made, or (b) which has been separately assessed to land revenue, or would have been so assessed, if the land revenue had not been released, compounded for, or redeemed, or a leased compounded for, or redeemed, or (c) which the Local Government may, by general rule or special order, declare to be an estate." The joint responsibility of all the landowners of an estate for its revenue is provided for in section 61 of the Act. In practice it is rarely enforced. A rule made under clause (c) of the section quoted above declares "all demarcated areas of uncultivated and forest land owned by Government" to be estates. A village, as a rule, consists of a single block of land. But occasionally the whole of its land does not lie in a ring fence, and some outlying fields are found mixed up with the lands of another village. Thus, there remains no ambiguity in the determination that an "estate" means any area for which either a separate record-of-rights (jamabandi) has been prepared or which has been treated separately for an assessm ent or which has been declared to be an estate by the Provincial Government. An "estate" or "mahal" is somewhat different from a village or mauza. Although, according to the judgment reported as Jamil and S others v. Sheerin and 3 others (2011 YLR 1083) passed by the learned Peshawar High Court, the connotation of word "estate" employed in Section 4(9) of the Act of 1967, does not mean that it consists of village or mauza or gaon or pind; generally an estate or mahal is identical to a village or mauza but an estate may include more than one villages, and a village may be divided into two estates. Furthermore, as per the judgment reported as Muhammad Khan v. Ghulam Rasool and another (1999 YLR 2688), the Supreme Court of AJ&K held that the term "estate" is a legal expression which forms the unit for revenue assessment, an estate or mahal is different from a village or mauza, however, generally an estate is a mahal which is assessed to revenue. 9. Under the provisions of Section 3(1) and (2) read with Section 116 of the Act of 1967, the maintenance of record of rights in cities and towns is also the function of the Board of Revenue for which it issues directives from time to time under various provisions of the said Act. In this regard, it is pertinent to note the judgment of the learned High Court reported as Pervez Ahmad Khan Burki
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and 3 others v. Assistant Commissioner, Lahore Cann. and 2 others (PLD 1999 Lahore 31) wherein the following was held:- "4. Having heard the learned counsel for the parties and perused the record, I am of the view that the contentions raised on behalf of the petitioners are unexceptionable. Undoubtedly respondents Nos,2 and 3 are functionaries appointed under the Punjab Land Revenue Act, 1967 to carry out the purposes of the aforesaid Act. The preamble to the Act recites that it was being framed to consolidate and amend the law relating to the making and maintenance of records-of-rights, the assessment and collection of land revenue, the appointment and functions of revenue officers and other matters connected therewith. According to section 3 of the Act, except for certain fiscal purposes, nothing in the Act applies to land which is occupied as a building site or such land on which permanent structures have been raised; it loses all characteristics of. A agriculture land and the dispute as regards the partition of such land has to be resolved through the Civil Court and not by Revenue Court. No detailed discussion on the subject is necessary in view of the judgment of this Court in Ghulam Rasool v. Ikram Ullah etc. PLD 1965 (W. P.) Lahore 429 whereafter exhaustive discussion on the subject it was held that a Revenue Officer does not have any jurisdiction to entertain an application for the partition of the properties which have ceased to be land notwithstanding the fact they continue to be assessed to land revenue. The land involved' in the present case is on much better footing inasmuch as the land does not pay any land revenue. The same view was taken in Syed Aslam Shah and 3 others v. Mst. Sakina and another 1988 MLD 1596. So far as the judgment relied upon by the learned counsel for the respondents is concerned, it is clearly distinguishable inasmuch as it related to demarcation of open plots of land" In the judgment reported as Dr. Jalal Khan v. Qazi Naseer Ahmed, District Deputy Officer, (Revenue), Kharian, District Gujrat and 6 others (2005 MLD 814) the Lahore High Court held as follows:- 5. 1 have minutely considered the respective arguments of the learned counsel for the parties and have examined the record, appended herewith. Before proceeding with the determination of the controversy, it has to be kept in mind that property subject of dispute is located within limits of Town Committee, Kharian, and is not only urban in nature but has also been converted into building site. For examination whether such property could be demarcated by respondent…
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