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Petitioner: THE PROVINCE OF WEST PAKISTAN THROUGH THE CHIEF SECRETARY OF WEST PAKISTAN VS Respondent: ABDUL RAZZAQ SHAH
P L D 1969 Karachi 389
P L D 1969 Karachi 389
Before Muhammad Afzal Zullah, J
(1) THE PROVINCE OF WEST PAKISTAN THROUGH THE CHIEF SECRETARY OF WEST PAKISTAN, (2) THE CHIEF LAND COMMISSIONER, WEST PAKISTAN, LAHORE, (3) THE COLLECTOR AND DEPUTY LAND COMMISSIONER, KHAIRPUR AND (4) THE MUKHTIARKAR, ROHRI‑Appellants
Versus
ABDUL RAZZAQ SHAH‑Respondent
Second Appeal No. 25 of 1966, decided on 28th March 1969.
(a) West Pakistan Land Reforms Regulation, 1959 [Martial Law Regulation (C. M. L. A.'s) No. 64],
para. 27‑Paragraph 27 protects orders only if made under Regulation‑Matertal on record showing Chief Land Commissioner not haring acted under Regulation-- Orders of Chief Land Commissioner, in circumstances, held, challengeable before civil Court.
The material on record indicated that an application under para. 21(2), Martial Law Regulation No. 64 for recognition of the Mukhadimi rights of the applicants in the Jagir granted to their ancestor by British Rulers in 1868‑69, was rejected by the Chief Land Commissioner by ignoring certain relevant entries in the revenue records. The lower civil Courts holding that the Chief Land Commissioner failed to perform his duty under the Regulation by ignoring the entries in the relevant records nullified the impugned order. In second appeal before the High Court it was contended that para. 27 of the Regulation barred scrutiny of such order by civil Courts. In reply the High Court held "Para. 27, M. L. R. No. 64 protects the relevant orders only if they are made under the Regulation. This means that if it is shown that a particular order was not made under the Regulation, the same could be challenged in a civil Court.
The case of the respondent before the trial Court, with a prima facie support from the material, was that the Chief Land Commissioner did not act under the Regulation in deciding the revision petition. This position has been confirmed by findings in both the judgments under appeal. Therefore, it cannot be said that in this case the civil Courts have no jurisdiction".
Nawab Haji Khair Muhammad Khan v. The State P L D 1966 S C 604 fol.
(b) Words and phrases--‑
"Revenue records" ‑ Connote all records maintained by Revenue Authorities.
(c) West Pakistan Land Reforms Regulation, 1959 [Martial Law Regulation (C. M. L. A's) No. 64],
para. 4(5) and West Pakistan Land Commission Notification No. A.S.R.‑2933‑59/4030‑L.C., dated 5‑9‑1959‑All revenue records‑Basis for enquiries and findings by Land Commission authorities‑Chief Land Commis sioner ignoring entries in Form 1 prepared under S. 135‑B, Sind Land Revenue Code‑--Action of Chief Land Commissioner, in circumstances, held, ultra vires the Regulation.
By Notification No. A.S.R.‑2933‑59/4030‑L.C., issued on 5th September 1959, under paragraph 4(5) of the Regulation, the Commission directed that the term "existing owner" as used in the Regulation shall be deemed to mean a person entered as an owner in the revenue records (on or before the 7th February 1959). It is significant that the use of the technical phrase "record of rights" has been avoided, and the revenue records have been made the basis of the enquiries and findings by the authorities concerned. There may be some similar other order; one thing is however clear that the Commission did take a decision in this behalf which is summarised by the author of the book "Land Reforms in West Pakistan, Vol. I" in para. 37 at p. 29. The heading is "Entries of Revenue Records". Undoubtedly, all the Revenue Records are to be taken not of by the authorities; without any distinction as to the nomenclature of the record. It is further provided in paragraph 4(5) of the Regulation that when the Commission makes such a provision, as is referred to above, that provision shall be deemed to form part of the Regulation and shall have the effect accordingly. In this view of the matter, Form I prepared under section 135‑B, Sind Land Revenue Code would be a revenue record and it would be illegal to ignore the entries contained therein.
The Chief Land Commissioner while rejecting an application under para. 21(2) of the M. L. R. No. 64 for recognition of Mukhadimi rights of applicants in the Jagir granted to their ancestor by British Rulers in 1868‑69, had ignored the entries in Form I, prepared by the Revenue Authorities under section 135‑B, Sind Land Revenue Code. Action of the Chief Land Commis sioner was nullified by the lower civil Courts
Held, it is impossible to hold that the Chief Land Commissioner acted under the Regulation. The determination, under paragraph 21(2) of the Regulation of the Mukhadimi rights is a substantive matter and affects valuable rights of the parties concerned. It is not a question of mere procedure. Therefore, by ignoring the other revenue records, the Chief Land Commissioner has not acted under the Regulation and thus his order is illegal, void and. ineffective and has been correctly declared to be so by the learned lower Courts.
Kazi Akhtar Hussain, Addl. A. G. for Appellant.
M. K. Chandnani for Respondent.
Dates of hearing: 24th, 25th February and 10th March 1969.
JUDGMENT
This is second appeal arising out of the judgment and decree passed by the trial Court on 10th November 1964, and confirmed in first appeal on 18th September 1965; nullifying the order, dated 18th January 1964, passed in revision by the Chief Land Commissioner, in respect of an application made under para. 21 (2) of the Martial Law Regulation No. 64.
2. The material facts alleged are that a Jagir was granted by Emperor Alamgir to one Mir Yaqub Shah and his family. During the British rule, the jagir was confirmed to the male lineal descendants of said Mir Yaqub Shah. Abdul Razzaq (respondent herein) claims to be one of those descendants; and in his statement during the trial of the suit has further claimed to be the "Mukh Khatedar" and Manager of the jagir. This jagir, by passage of time, came to be known as jagir Kot Yaqub Shah, probably with reference to the original jagirdar. Its settlement was effected during 1868‑69 and the revenue map was prepared. In 1914, a fresh map was prepared with similar boundaries; but Survey Nos. 12 to 19 of the jagir were taken from Deb Kot Yaqub Shah and were included in Deh Rohri.
On 26th November 1959, the respondent along with other co -sharers made an application (the application is not on the record but it appears to have been made under paragraph 21 (2) of M. L. R. No. 64) for the recognition of their Mukhadimi rights in the entire area of the jagir. `Mukhadim' has been described at page 143 of the book "Land Reforms in West Pakistan" (Volume I) as an occupant of jagir land. This definition has been taken from section 2 (8) of the Sind Tenancy Act (XX of 1950). There are various categories of Mukhadims under the jagir system in Sind‑, but for the purposes of this appeal, it is not necessary to deal with that subject. The fact remains that if the respondent held Mukhadimi rights in the jagir land; he could, taking benefit of paragraph 21 (2) of M. L. R. No. 61, retain the jagir land.
3. The copies of all the orders by the Land Commission authorities are not on the file. However, the order of the Land Commissioner, Khairpur Division, dated 13th April 1963 (Exh. 27) shows that the Assistant Land Commissioner, Rohri, recognised the rights of the Sayeds (Jagirdars), excepting in Survey Nos. 12 to 19 of Deh Rohri and Survey Nos. 1, 2, 19, 27, 28, 30, 32, 33, 34, 37, 38, 42, 46, 47 arid 55 of Deb Kot Yaqub Shah. The respondent filed an appeal before the Deputy Land Commissioner who, by his order, dated 4th October 1960, allowed it, except in case of Survey Nos. 12, 23, 25, 26 and 48. In respect of these survey numbers, the Mukhtiarkar was directed to make further enquiries. The Chairman, Municipal Committee, Rohri, and several others sought a review of the order dated 4th October 1960, which after the necessary formality 'of permission, was allowed. In the review order, it appears to have been held that the Jagirdar Sayeds were not Mukhadims of the land which was non‑agricul tural. Therefore, the entire land was resumed as Government property under section 37 of the Sind Land Revenue Code (a provision relating to the ownership of State in all public roads, etc., and all lands which are not the property of others). An appeal was then filed by the respondent before the Land Commissioner who, by the order above‑mentioned, held that Kot Yaqub Shah jagir was a khairat grant; and that in the khairat jagirs, the Mukhadimi rights vested in Jagirdars, unless a contrary claim by way of purchase, etc., is proved against them. It was further observed that in jagir area, the Jagirdar was competent to all allow conversion of agricultural land into non‑agricultural and vice versa. It is noted in the order that the above fact was admitted by the Deputy Land Commissioner. It is further noted that the Land Revenue Code, the rules thereunder, or the sanad of the jagir did not make any provision adversely affecting the ownership in jagir land, if the same was converted from agricultural to non‑agricultural; though that fact may involve certain liabilities to pay a greater amount of land revenue. . Section 48 of the Land Revenue Code was mentioned in support of that view. It is necessary to mention here that the Land Commissioner made the above observations, after seeing the maps and records from Survey Settlement and Revenue Departments. This was necessitated because the changes with regard to entries since 1914 were to be determined. The Land Commissioner, however, did not decide the appeal on the basis of any logical conclusion derivable from the above findings of fact. He accepted the appeal on technical grounds that:‑
(i) "As a matter of fact, this land being non‑agricultural land, it should not have been adjudicated upon by the Deputy Land Commissioner, as Land Reforms authorities' jurisdiction is barred in respect of non agricultural land;"
(ii) the appeal had been filed; therefore, Deputy Land Commissioner could not pass an order in review;
(iii) before resuming the land under section 37, L. R. C., the Deputy Land Commissioner failed to perform certain formalities.
The operative part of the order is not consistent with the above findings of the Land Commissioner because it restored the order, dated 4th October 1960, of the Deputy Land Commissioner who had, admittedly, assumed jurisdiction in respect of the land in dispute under the Martial Law Regulation N9. 64. It was further directed by the Land Commissioner that the "existing entries in the Revenue records should be honoured. Any person aggrieved can establish his claim in the competent Civil Court".
The Municipal Committee, Rohri, through its Chairman, filed a revision petition before the Chief Land Commissioner which was accepted on 18th January 1964 (Exh. 29). It appears that the other co‑sharers in the jagir were also respondents in the revision petition. On the question whether or not the jagir land was "land" as defined in paragraph 2 (5) of the Regulation, the Chief Land Commissioner noted that the respondents therein contended that all the disputed survey numbers were such land to which M. L. R. No. 64 was not applicable. This contention was not accepted because, according to the Chief Land Commissioner, only such lands which were not assessable to land revenue could be excluded from the definition of "land"; but the disputed survey numbers were either unassessed, or incapable of cultivation which did not amount to the land being unassessable. Therefore the whole land, some of which admittedly fell within the municipal limits of town, was treated to be "land" and thus subject to the jurisdiction of the Land Commission. In respect of definition of "land" reliance was placed on some clarification by the Land Commission. On the question of merits, it was held that no Mukhadimi rights in Survey Nos. 12 to 18, 20 to 26, 29, 39, 40, 41, 45 and 48 could be claimed; because in column 11 of Form VI, railway department was shown as Khatedar in possession. As regards Survey No. 19, the entry in that column was Samadhi. The entry "Inami" in column 6 of the same form was not considered to be sufficient for establishing the Mukhadimi rights. Column 6, it may be mentioned, related to the character of the land and Inami, according to the Chief Land Commissioner, meant jagir land. But benefit of these observations was not given to claimants because, according to him, they had not established their Mukhadimi rights on the basis of actual possession which was to be reflected in column 11. Similarly, the absence of the names of the claimants in column 11 of Form VI in respect of Survey Nos. 1, 2, 27, 28, 30, 32, 33, 34, 37, 38, 42, 46, 47 and 55 was treated as amounting to absence of their Mukhadirni rights in the land in dispute. In respect of one of these survey numbers (S. No. 47), the entry in column 11 was hospital. In nutshell, relying on the entry in column 11 of Form VI only, it was held that no Mukhadimi rights could be recognised under M. L. R. No. 64, in respect of all the survey numbers mentioned in the order of the Chief Land Commissioner.
4. Aggrieved by the above order, Abdul Razzaq Shah respondent filed a civil suit, seeking declaration that the above mentioned order, dated 18th January 1964, was illegal, void and ineffective and thus liable to be set aside: and for the permanent in junction that the Record‑of‑Rights of Deh Yaqub Shah relating to 1960‑61 showing the plaintiff and other co‑sharers as Khatedars and Kabzedars in respect of Survey Nos. 1, 2, 19, 27, 28, 30, 32, 33, 34, 37, 38, 42, 46, 47 and 55 should not be changed. A further injunction was sought against defendant No. 4 (Mukhtiarkar, Taluka Rohri), in that he should not interfere with the possession of the plaintiff and other co‑sharers of the above survey numbers.
5. The learned Civil Judge 1st Class, Sukkur, held that the land in dispute was not "land" as defined in paragraph 2 (51 of M. L. R. No. 64 and thus was not subject to the jurisdiction of the authorities acting under the Regulation; and that the Chief Land Commissioner failed to perform his functions under the Regulation, by not looking into the Land Records and other documents including an order of the Deputy Commissioner, dated 12th June 1958 (Exh. 30) which showed that Survey No. 19 was included in the jagir and the report of Mukhtiarkar, Rohri (Exh. 31) which showed that the respondent had been managing that land (in dispute) which was situated in Rohri town. In this very connection, column 7 of Form I, which was meant for showing the Khatedars and in which the names of the Jagirdars were mentioned, was particularly referred as having been ignored by the Chief Land Commissioner. After giving the above findings, the learned Civil Judge very clearly observed that it was "not the function of the Civil Court to give findings on facts when its powers are limited in case of this nature and it can interfere only when there is an apparent‑breach of provisions of land and disregard of the statu tory rules and regulations". Reliance was placed on a rule laid down by Land Commission requiring the authorities concerned to look into all the Revenue Records for deciding cases under the Regulation. It was further observed that it was "not proper for the Civil Court to go into detailed discussion on facts when the suit is filed only for the declaration that the order of the Chief Land Commissioner suffers from an inherent legal defect. I therefore decide that the order of the learned Chief Land Commissioner is illegal and ultra vires." While dealing with issue No. 5 relating to the relief, the learned Civil Judge not only gave a declaration to the effect that the order of the Chief Land Commissioner was illegal, void and ineffective but also declared that the plaintiff (respondent) "continues to hold the Mukhadimi rights" in the disputed survey numbers.
The learned District Judge, Sukkur, has almost entirely followed the reasoning and findings of the learned trial Court and has dismissed the appeal in toto. Some observations in his judgment are worth‑noticing. It was observed that the Chief Land Commissioner did not touch the question raised by the Land Commissioner that the land being non‑agricultural, the Regulation was not applicable. This observation is not entirely correct. In fact, the Chief Land Commissioner did touch this subject and held that in his view the area in dispute is "land". At another place, it was observed by the learned District Judge that "the only question before the Chief Land Commissioner was as to who were the Khatedars or `Qabzedars' of the various survey numbers mentioned in paragraph 5 of the plaint." In this connection, it was mentioned that column 7 of Form I indicated the names of the Jagirdars as Khatedars and Kabzedars.
6. Kazi Akhtar Hussain, learned Additional Advocate -General, has raised two contentions in this second appeal, namely,‑
(i) that the order of the Chief Land Commissioner having been passed in exercise of a jurisdiction conferred by M. L. R. No. 64, paragraph 27 thereof barred the scrutiny of such an order by the civil Courts. He, however, conceded that the civil Court will have jurisdiction to interfere if‑
(a) the order is without jurisdiction,
(b) it is passed mala fide.
(ii) that in case of success of the respondent in the civil Court, the proper decree that could be passed was only to set aside the order of the Chief Land Commissioner, with consequential direction to him to pass a fresh order in accordance with law.
7. There is no force in the first contention of the learned Additional Advocate‑General. It is true that before the promulgation of the Constitution in 1962, there were provisions in some Martial Law Regulations protecting orders purporting to be made under the various Martial Law Regulations. Those provisions were no more available to the appellants in this case. That is probably why the learned Additional Advocate‑General placed reliance only on paragraph 27 of M. L. R. No. 64 itself. This paragraph protects the relevant orders only if they are made under the Regulation. This means that if it is shown that a particular order was not made under the Regulation the same could be challenged in a civil Court. The case of the respondent before the trial Court with a prima facie support from the material, was that the Chief Land Commissioner did not act under the Regulation in deciding the revision petition. This position has been confirmed by findings in both the judgments under appeal. Therefore; it cannot be said that in this case the civil Courts have no jurisdiction.
Reliance can respectfully be placed on the ruling of the Supreme Court on the point in almost similar circumstances in the case of Nawab Haji Khair Muhammad Khan v. The State (P L D 1966 S C 604). In view of this ruling, the first contention of the learned Additional Advocate‑General need not be discussed any further.
8. In order to appreciate the second contention of the learned Additional Advocate‑General, it is necessary to deal with the question whether the findings of the learned lower Courts to the effect that the impugned order was not passed under the Regulation, are correct or not: because if an affirmative answer is found to this question, only then the question raised in the second contention will arise, namely, what decree should have been passed.
It is an admitted fact that the Chief Land Commissioner relied on the solitary document, i.e. Form VI, to support the finding that the respondent had no Mukhadimi rights. No doubt, all jagirs were abolished under sub‑paragraph (1) of paragraph 21 of the Regulation; but under sub‑paragraph (2) thereof, certain persons were allowed to retain the jagir land up to the maximum ceiling, i.e., five hundred acres of irrigated Land or an area representing thirty‑six thousand produce index units, whichever was more. It is agreed by both the learned counsel that persons having Mukhadimi rights shall be entitled to retain land under this sub‑paragraph. Thus the determination of all questions arising under this sub‑paragraph is a very important substantive matter. If any of the provisions of the Regulation, Rules, Orders and direc tions issued thereunder, which have the force of law, are not complied with while determining such questions, it cannot be said that the order so passed is under the Regulation. It appears that the Chief Land Commissioner was of the view that Form VI being a part of Record‑of‑Rights was the only document to be looked into, for deciding the vital questions involved in this case; other record, for example Form I, was not to be treated as Record‑of‑Rights. 1t is doubtful whether this assumption is correct. Section 135‑B of the Sind Land Revenue Code makes provision for the maintenance of Record‑‑of‑Rights. It reads as follows:‑
"135‑B. (1) A record‑of‑rights shall be maintained in every village and such record shall include the following parti culars:‑
(a) the names of all persons (other than tenants) who are holders, occupants, owners or mortgagees of the land or assignees of the rent or revenue thereof;
(b) the nature and extent of the respective interests of such persons and the conditions or liabilities (if any) attaching thereto;
(c) the rent or revenue (if any) payable by or to any of such persons;
(d) such other particulars as the Provincial Government may prescribe by rules made in this behalf
(2) Provided that the said particulars shall be entered in the record‑of‑rights "with respect to perpetual tenancies, and also with respect to tenancies of any other classes to which the Provincial Government may, by notification in the official Gazette, direct that the provisions of this section shall apply in any local area or generally."
The entries in Form I included those relating to Khatedars and Kabzedars. "Owner" as defined in section 2 (7) of M. L. R. No. 64 includes an occupant as defined in the Sind Land Revenue Code. "Occupation" in section 3 (19) of the Land Revenue Code is defined as possession; and "occupant", in section 3 (16) thereof, as a holder in actual possession of unalienated land, other than a tenant: provided that where the holder in actual possession is a tenant, the landlord or superior landlord, as the case may be, shall be deemed to be the occupant. In section 3 (13), Jagirdar or Inamdar has been included in the definition of "superior holder". "To hold land", or to be a "land holder" or "holder" has been defined in section 3 (11) to mean to be lawfully in possession of land, whether such possession is actual or not. "Tenant" as defined in section 3 (14) would mean a lessee other than one holding directly under the Crown. In view of the above provisions, it is doubtful if a Jagirdar who is mentioned as Khatedar or Kabzedar in Form I is not an occupant, or holder of the land, or assignee of the rent or revenue thereof, as envisaged by clause (a) of subsection (1) of section 135‑B. Therefore, to contend that Form I is not Record‑of‑Rights, is not entirely correct.
It is not necessary to decide this question finally in this case, because the matter does not rest on the definition of the Record‑of‑Rights alone. It is so because it is not only the record‑of‑rights which needs to be looked into for deciding a case but also "land records" and "revenue records" maintained by the concerned authorities. "Land record" is defined by section 3 (26) of the Code as the records maintained under the provisions, of, or for the purposes of the Code. The phrase "revenue records" is not defined, either in the Code or in the M. L. R. No. 64; but its connotation is very well known, i.e. all the records which are maintained by the Revenue authorities. Admittedly, Form I, if at all it does not fall under the category of record‑of‑rights, falls under the other two categories, i.e., land records and revenue records. Both the learned lower Courts appear to have misunderstood paragraph 37 on page 29 of the book known as "Land Reforms in West Pakistan, Volume 1", as if it was a rule under the Regulation. Under the Regulation, rules can be framed by virtue of the power given by its paragraph 6. Rules (14 in all) were framed vide Notification No. 1936/59/567‑L.C., dated 17th April 1959, which are found in Appendix X in the same book at page 320. Obviously those are not the rules referred to in the judgments under appeal. Three is another set of twenty‑two instructions for the guidance of the authorities, issued by the order of the Chief Land Commissioner, contained in Appendix XIV and printed at page 367 of the same book. Again these were not the instructions being referred by the learned lower Courts; though in some paragraphs of these instructions the authorities concerned, were required to see all the relevant material and to entertain evidence, if any, produced…
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