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Petitioner: Mian Shehzada Jan & others VS Respondent: Muhammad Israr & others
Court Name: Peshawar High Court Judge(s): Wiqar Ahmad Title: Mian Shehzada Jan & others vs Muhammad Israr & others Case No.:(1) W.P No. 827-M/2020 (2) W.P No. 328-M/2018 (3) W.P No. 710-M/2018 (3)
JUDGMENT
Reported As: 2021 PHC 144, PLD 2022 Peshawar 147 Result: Accordingly dismissed Judgment CONSOLIDATED JUDGMENT WIQAR AHMAD, J. This order is directed to dispose of W.P No. 827-M/2020, W.P No. 328-M/ 2018, W.P No. 710-M/2018, W.P No. 288-M/2019, W.P No. 378-M/2019, W.P No. 1221-M/2019, W.P No. 290- M/2020 and W.P No. 320-M12020. Facts of the above-mentioned cases are not same, but common legal questions have been existing in all these cases, which are being answered through the instant judgment inter-alia, and all these cases were therefore taken for decision through this single judgment. 2. The questions for determination had arisen in the cases of demarcation and proceedings of partition being conducted by the revenue officers in those districts, wherein revenue record had not been existing. The questions regarding jurisdiction of revenue officers to conduct such proceedings are requir ed to be answered. Respective facts of each petition shall be attended later on, but first said questions shall be answered. 3. Arguments of learned counsel for the parties, learned Asst: A.G as well as Mr. Sher Muhammad Khan, Advocate as amicus curiae have been heard. Notice had also been issued to learned Advocate General, Khyber Pakhtunkhwa in all these cases, as mentioned in order dated 05.10.2020 of one of the connected cases heard together but disposed of through a separate judgment of even date. Barrister Dr. Adnan Khan had also been appointed as amicus curiae but he subsequently requested for relieving him from said responsibility for the reason .that he had been representing a party in a similar nature case (W.P No. 1003- M12020). He was accordingly relieved of the responsibility of assisting the Court as amicus curiae. 4. The two common questions that are required to be answered in all these cases are rephrased below for the sake of clarity;
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a) Can a revenue officer entertain an application for demarcation of the land in respect of which record of rights or periodical records have not been prepared and maintained under the West Pakistan Land Revenue Act, 1967 (hereinafter referred to as the "Revenue Act"). b) Can a revenue officer entertain, an application for partition in respect of the properties, which have not yet been documented in the record of rights or periodical records prepared and maintained under the Revenue Act. 5. Determination of question (a): (Can a revenue officer entertain an application for demarcation of the land in respect of which record of rights or periodical records have not been prepared and maintained under the Revenue Act); All laws of the land stood extended to Provincially Administered Tribal Areas (hereinafter referred to as `PATA') after repeal of Article 247 of the Constitution of Islamic Republic of Pakistan, 1973 (hereinafter referred to as the "Constitution") by the 25th Constitutional Amendment but it requires a clarification here that the Revenue Act had earlier been extended to PATA and same has had its normal operation in the area even prior to 25th Constitutional amendment. Chapter-X of the Revenue Act deals with surveys and boundaries. Section 117 of Chapter-X of the Revenue Act provides for the power of Revenue Officers to define boundaries, when an application for demarcation is made there-under. Said Section is being reproduced hereunder for ready reference; "117. Power of Revenue Officers to define boundaries.- (1) A Revenue Officer may, for the purpose of framing any record or making any assessment under this Act, or on the application of any person interested, define the limits of any estate, or of any holding, field or other portion of an estate, and may, for the purpose of indicating those limits, require boundary marks to be erected or repaired. (2) In defining the limits of any land under sub-section (1), the Revenue Officer may cause boundary marks to be erected on any boundary already determined by, or, by order of, any Court of Revenue Officer or any Forest Settlement Officer appointed under the Forest Act, 1927 (Act XVI of 1927), or restore any boundary mark already set up by , or by order of, any Court or any such officer ." An interested person may file an application for defining limits of an estate, or of any holding, field or other portion of an estate, under the above reproduced Section 117 of the Revenue Act. "Estate" has been defined in Clause-9 of Section 4 of the Revenue Act as follows; "(9) "estate" means any area:- 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;" Similarly , "holding" has been defined in Clause-10 of Section 4 of the Revenue Act as follows; "(10) "holding" means a share of portion of an estate held by one land owner or jointly by two or more land owners;" Definition of the word "estate" as provided in Clause-9 of Section 4 of the Revenue Act, means an area for which a separate record of rights has been made or is separately assessed to land revenue or is declared by the Board of Revenue by way of rule or special order as an estate. Similarly, "holding" means a share or portion of an estate held by one land owner or jointly by two or more land owners. The purpose of entrusting revenue officer with the powers of defining boundaries, under section 117 of the Revenue Act has been, to enable him to frame record or make assessment under the Revenue Act or on the application of an interested person to define the limits of any estate, or of any holding, field or other portion of an estate, and may for the purpose of indicating those limits require boundary marks to be erected or repaired. The connotation "field or other portion of an estate" as per the definition mentioned above, means an area for which record of rights has been made or is assessed to land revenue. In all the cases of demarcation aimed at disposal through this judgment, none of the case related to such land, which may be called as an estate or part of an estate, or holding as defined in Clauses-9 & 10 of Section 4 of the Revenue Act. 6. Section 121 of the Revenue Act provides for power of Board of Revenue to make rules for demarcation of boundaries and erection of boundary marks. It has clearly been laid down therein that the Board of Revenue may,
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make rules as to the manner in which the boundaries of all or any of the estates in any local area were to be demarcated or the boundary marks erected within those estates. The rules so framed may only provide for demarcation of those lands which fall in the definition of an estate. The rules framed for demarcation of lands would therefore be inapplicable in those cases, where the land record has not been existing and which do not come in the definition of an estate. Other related provisions contained in Chapter-X of the Revenue Act have also been so framed as to provide for the effect and ancillary matters of defining boundaries of an estate, holding or part of an estate and can only be given effect in an area in respect of which the revenue record has been existing. No provision, either in the Revenue Act or rules framed there under had been providing for demarcation of such areas, where land record has not been existing already except a case where such a survey or determination of boundaries is necessary for the purpose of preparation of land record, at the time of settlement of land. Revenue officers, cannot therefore entertain any application for demarcation in respect of land, which has not yet been documented in the revenue record and in that respect record of rights has not been prepared. 7. Exclusion of jurisdiction of civil Court provided in Clauses-xx and xxi of sub-section 2 of Section 172 of the Revenue Act would not be effective in those areas, where revenue record has not been prepared and notified. Said clauses provided for barring jurisdiction of civil Court, which need a consideration here and are reproduced hereunder for ready reference; "(xx) any question connected with or arising out of or relating to any proceedings for the determination of boundaries of estates subject to river action under the provisions of this Act; and (xxi) any claim regarding boundaries fixed under any of the enactments hereby repealed or any other law for the time being in force, or to set aside any order passed by a competent officer under any such law with regard to boundary marks." Wordings of the above reproduced Clause (xx) are clear , which bar any question connected with or arising out of or relating to any proceedings for the determination of boundaries of estates under the provisions of the Revenue Act. As explained earlier , no "estate" has been existing in these areas where revenue record has not been notified and therefore there cannot be any question of determination of its boundaries by the revenue officer under Chapter-X of the Revenue Act. For said reason, Clause (xxi) would also not apply and jurisdiction of the civil Courts shall not be barred in cases where there arises any dispute relating to boundaries of private properties not yet documented in the record of rights. 8. Determination of a question as wherefrom property of a particular person or persons starts and where it ends, in such a situation as described above, would be a pure question of title, which can even otherwise not be allowed to be adjudicated upon by a revenue officer exercising powers under the Revenue Act. These are purely judicial functions and cannot be left at the hands of a revenue officer. Right to hold property is a fundamental right guaranteed under Article 23 of the Constitution. Article 24 of the Constitution also provides for protection of property rights. Question of title of a property is a serious question and requires well defined mechanism for adjudication thereupon. The mechanism should also be such that parties have right to a full-fledged hearing at a well defined judicial proceedings. It should also include proper rights of appeal to such forums which exercises full independence. The Revenue Act has not been enacted for providing such forum or system of adjudication for determination of questions of rights. Purpose of the Revenue Act has mainly been providing for laws relating to documentation of revenue record for the purpose of generation of land revenue. It is a special law and the forums established therein cannot be deemed to have been established for the purpose of adjudicating upon proprietary rights of the parties including disputes of title. By now Article 10-A also stands inserted in the Constitution by way of the Constitution (18 Amendment) Act 2010, which requires that for the determination of his civil rights and obligations or in any criminal charge against him, a person shall be entitled to a fair trial and due process. Hon'ble Supreme Court of Pakistan while rendering its judgment in the case of Al-Jehad Trust through Raeesul Mujahideen Habib-ul-Wahabb-ul-Khairi and others vs. Federation of Pakistan and others reported as PLD 1996 Supreme Court 324 has observed that the right to have access to justice through an independent judiciary was a fundamental right, and without anth
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independent judiciary the right would be meaningless and would not have efficacy and beneficial value for the public at large. Same view had also been reiterated in the case of Al-Jehad Trust through Raeesul Mujahideen Habib-ul-Wahabb-ul-Khairi and others vs. Federation of Pakistan and others reported as PLD 1997 Supreme Court 84 as well as in the case of All Pakistan Newspapers Society and others vs. Federation of Pakistan and others reported as PLD 2012 Supreme Court 1. In the case of Sh. Riaz-ul-Haq and another vs. Federation of Pakistan Through Ministry of Law and others reported as PLD 2013 Supreme court 501, the Hon'ble Supreme Court of Pakistan had observed that determination of a question of rights cannot be left at the discretion of persons who had not been having knowledge and experience in the legal field. It was further held in para-45 of the judgment; "The Principle of separation and independence of judiciary as envisaged in Article 175 of the Constitution is also applicable to the lower judiciary as it is the part of the judicial hierarchy . Thus, its separation and independence has to be secured and preserved as that of superior judiciary . In terms of Article 175 read with Article 203 of the Constitution, the lower judiciary should be separated from the Executive and the High Court shall supervise and contro l all courts, subordinate to it. Reference may be made to the case of Government of Sindh v. Sharaf Faridi (PLD 1994 SC 105). In the case of Dr. Mobashir Hassan v. Federation of Pakistan (PLD 2010 SC 265) it has been held that the Legislature is competent to legislate but such legislation would not be sustaina ble if it is contrary to the principle of independence of judiciary as mentioned in Article 2A of the Constitution, which provides that independe nce of judiciary shall be fully secured read with Article 175 of the Constitution, which lays down a scheme for the establishment of the Courts, including the superior Courts and such other Courts as may be established by law. As it has been held that Service Tribunal discharges judicial functions, thus falls within the definition of a "Court' in view of the above discussion, therefore, the Tribunals have to be separated from Executive following the principle of independence of judiciary in view of Article 175(3) of the Constitution." It was further clarified in said judgment that wherever a Court makes determination of rights of parties, the function would be judicial in nature and such Court or Tribunal should be manned, controlled and regulated in accordance with judicial principles. Relevant findings of the Hon'ble Court are reproduced hereunder for ready reference; "In the case of Messrs Ranyal Textiles v. Sindh Labour Court (PLD 2010 Karachi 27) it has been observed that under the judicial system as established by the Constitution of the Islamic Republic of Pakistan, there are Courts and there are Tribunals. However , the Tribunals are only limited to the Tribunals specified in the Constitution such as Election Tribunal [Article 225], Administrative Tribunal [Article 212] and Tribunal relating to military affairs [Article 199(5)]. Beside these Tribunals, whenever judicial power is vested in a forum, whatever be its designation, be it called a Court, be it called a Tribunal or be it called a Commission, for all legal intents and purposes it is a Court and therefore has to be manned, controlled and regulated in accordance with the established judicial principles and the law relating to manning, regulation and control of Courts in Pakistan. Therefore, Labour Appellate speaking, through Tribunal, is a Court: it was held that the T ribunal, legally denominated as a nothing more, nothing less. The perusal of above case-law makes it abundantly clear that a tribunal is not always function as a 'Court', nor its action is always judicial; however , the determining factor is the nature of the dispute to be resolved by the Tribunal. If the Tribunal has to determine a dispute relating to a right or liability , recognised by the Constitution or law and is under an obligation to discover the relevant facts, in the presence of the parties, in the light of the evidence produced by them, it acts judicially . Besides, whenever judicial power is vested in a forum, be it called a Court or Tribunal, for all legal intents and purposes it is a Court. Further , such Tribunals have to be manned, controlled and regulated in accordance with the established judicial principles." A Division Bench of this Court while giving judgment in the case of Ali Azim Afridi, Advocate High Court Peshawar vs. Federation of Pakistan reported as PLD 2020 Peshawar 105, had also declared Section 141 of
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the Revenue Act -- which authorized a revenue officer to constitute itself as a civil Court and determine question of title as ultra-vires and inef fective by holding; "Though special courts and tribunals are formed under Article 212 of the Constitution but they have to exercise powers within their allotted spheres and could not intrude beyond that. Similar powers are exercised by a Rent Controller when only relationship of landlord and tenant exists but he as the Judicial Officer presides over the hearing and in case of denial he can frame a preliminary issue in this regard. A Family Court is also presided over by a Judicial Officer in cases of matrimonial dispute between spouses interse. Every special court is presided over by a Judge but not in the ibid Act. It is a remnant of olden colonial times. This is not the sole reason, we note that in view of the term implied in subsection (1) or he may himself proceed to determine the question as though he were such a court and in subsection (5)(b) of section 141 if the revenue officer continues to proceed with the trial despite dispute of title his order is to be treated as order of Civil Judge and .a decree of civil court, made appealable before the District Judge. By inserting such clause legislature was certainly not oblivious that the jurisdiction of revenue officer ceases to exist but fell short of applying the trichotomy of powers principle from the initial stage when question of title was raised in written reply. Just by their own figment of imagination the revenue hierarchy exercise their authority without following due process of law. While enacting this provision legislature is not oblivious that the powers of revenue hierarchy ceases from that point forward but still it authorizes a revenue officer to deliver judgment as a civil court by adopting procedure of the Civil Procedure Code. The stage from .where jurisdiction of revenue officer ends is where the jurisdiction of the civil court begins. If the law allows him to continue to exercise such jurisdiction it overlaps and it is not a step in aid of justice as it empowers an officer of the executive branch to exercise powers of judicial organ of the State." As corollary to above made discussion, it is held that in those districts where revenue record had not been prepared and maintained, a revenue officer would not have a jurisdiction to entertain applications for demarcation of boundaries of estate under section 117 of the Revenue Act and the bar of jurisdiction contained in Clauses-xx & xxi of sub-section 2 of Section 172 of the Revenue Act would not be operative against a civil Court entertaining any suit for the purpose. 9. Determination of Question (b): (Can a revenue officer entertain, an application for partition in respect of the properties, which have not yet been documented in the record of rights or periodical records prepared and maintained under the Revenue Act); Section 135 of the Revenue Act gives jurisdiction to a revenue officer to entertain application for partition. Said section of law being relevant is reproduced hereunder for , ready reference; "135. Application for partition.- Any joint owner of land may apply to a Revenue Officer for partition of his share in the land if:- a) at the date of the application the share is recorded under Chapter VI as belonging to him; or b) his right to the share has been established by a decree which is still subsisting at the date; or c) a written acknowledgment of that right has been executed by all persons interested in the admission or denial thereof." The above cited provision of law gives jurisdiction to a revenue officer to enter tain application for partition but requires existence of one of the three conditions for exercising such jurisdiction. The essential conditions include; i. Where the share is recorded under Chapter VI of the Revenue Act as belonging to the applicant. (Clause (a) of Section 135 of the Revenue Act); or ii. His right to the share has been established by a decree, which is subsi sting at the date of filing the application. (Clause (b) of Section 135 of the Revenue Act); or iii. A written acknowledgement of share in joint immovable property is executed by all the persons interested in admission or denial thereof. (Clause (c) of Section 135 of the Revenue Act). 10. If any of the above mentioned three conditions are available to an applicant, he may file an application for partition of his share in joint immovable property, which may be proceeded by the revenue officer
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according to rest of the provisions of the Revenue Act and Rules framed there-under, otherwise an application cannot be entertained by a revenue officer. In all the connected cases, the revenue record, in respect of the property sought to be partitioned, has neither been prepared nor maintained under Chapter VI of the Revenue Act. The first condition could not be met in any of these cases. The other two conditions remain i.e. determination of share by a decree of Court or a written acknowledgement of the right to such share, which are needed to be looked into, in the perspective of facts of each case separately , and such exercise shall be taken in latter part of this judgment. The question can therefore be answered easily by referring to Section 135 of the Revenue Act and clarifying that only in case of existence of any of the three situations given in Section 135 of the Revenue Act, an application may be entertained by a revenue officer for partition of joint immovable property , otherwise he would be divested of the jurisdiction to entertain such an application. 11. An ancillary question, raised by most of the parties in the instant proceedings have been, that if they had made a recourse to civil Court for partition of joint immovable property ,, their suit would have been hit by the bar of jurisdiction contained in Clause (xviii) of Section 172 of Revenue Act. Clause (xviii) being relevant is reproduced hereunder for ready reference; "(xviii) any claim for partition of an estate or holding, or any question connected with or arising out of, proceedings for partition, not being a question as to title in any of the property of which partition is sought;" Clause (xviii) of Section 172 of the Revenue Act bars a suit before civil Court for partition of an estate or joint holding, or any question connecting with or arising out of proceedings for partition. The word "partition" used in Clause (xviii), no doubt means a partition for which an application is entertained under section 135 of the Revenue Act. A case where an application cannot be entertained under section 135 of the Revenue Act, cannot therefore be subjected to the bar of jurisdiction contained in Clause (xviii) of Section 172 of the Revenue Act. So far as the words "any claim for partition of an estate or holding" are concerned, such words need to be understood according to the definition given in Section 4 of the Revenue Act, which has already been dilated upon in earlier part of this judgment. It has already been concluded that a land in respect of which record of rights had not been maintained or which was not assessable to Land Revenue or in respect of which Board of Revenue had not issued a special order declaring it as an estate, could not be termed as "estate". Similarly , such an estate would not come in the definition of "holding" which means a share of portion of an estate held by one land owner or two or more jointly. The bar of jurisdiction of civil Court in respect of entertaining application for partition would not therefore be effective against a civil Court in these areas, where revenue record has not at all been existing. Even otherwise, bar of jurisdiction of civil Court cannot be lightly inferred. Any law providing for exclusion of jurisdiction of civil Court has to be considered strictly as held by Hon'ble Supreme Court of Pakistan in case of Muhammad Tufail vs. Abdul Ghafoor and others reported as PLD 1958 Supreme Court (Pak.) 201, wherein the Hon'ble Court on the basis of ratio of an earlier judgment in the case of Secretary of State vs. Mask & Co. (AIR 1940 PC 105), had observed; "The general principle was enunciated in Secretary of State v. Mask & Co. AIR 1940 P C 105. At page 110, their Lordships observed: "It is settled law that the exclusion of the jurisdiction of the Civil Courts is not to be readily inferred, but that such exclusion must either be explicitly expressed or clearly implied. It is also well settled that even if jurisdiction is so excluded, the Civil Courts have jurisdiction to examine into cases where the provisions of the Act have not been complied with, or the statutory tribunal has not acted in conformity with the…
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