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Petitioner: Malik Khan, etc VS Respondent: Member (Judicial-VII), Board of Revenue, Punjab, etc
Court Name: Lahore High Court Judge(s): Ahmad Nadeem Arshad Title: Malik Khan, etc vs Member (Judicial-VII), Board of Revenue, Punjab, etc Case No.: W.P. No. 895 of 2016 Date of Judgment:2022-03-08 Reported As: PLJ 2022 Lahore 777 Result: Petition dismissed
JUDGMENT
JUDGMENT Through this Constitutional petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioners have called in question the validity and legality of order dated 19.12.2014 passed by the Member (Judicial-VIM), Board of Revenue, Punjab (Respondent No. 1) who, while accepting the Revision of Revision (ROR No, 2327 of 2012), set aside order, dated 29.06.2012, passed by the Addl. Commissioner (Consolidation), Rawalpindi Division (Respondent No. 2), regarding dismissal of the appeal of Respondent No. 4 and order, dated 25.02.2008, passed by the Collector (Consolidation) Chakwal, whereby he reversed order, dated 29,05.1962, passed by Consolidation Officer Talagang. 2. Tersely, necessary facts forming background of the petition in hand are that land falling in Khasra No. 1391 measuring 08 Kanals & 02 Marlas falling in Mauza/Village sangwala, Tehsil Talagang, District Chakwal belonged to Sher Zaman (predecessor of the petitioners) and through consolidation, proceedings said land was transferred in the name of Nawab Khan (predecessor of Respondent No. 4) vide consolidation scheme which was confirmed on 29.05.1962 by the Consolidation Officer. After passage of 45 years, in the month of October, 2007, the petitioners challenged the validity of said order of the Consolidation Officer by preferring an appeal before Respondent No. 3 who accepted the same vide ex-parte order, dated 25.02.2008. On gaining knowledge of said ex-parte order, Respondent No. 4 filed a time barred appeal on 22.03.2011 before the Respondent No. 2 who dismissed the same through order, dated 29.06.2012, on the ground that said appeal was not maintainable being barred by time. Feeling aggrieved, Respondent No. 4 filed ROR No. 2327 of 2012 on 24.09.2012 before Respondent No. 1 which was allowed vide order dated 19.12,2014 and orders dated 29.06.2012 and 25.02.2008 were set aside and order dated 29.05.1962
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passed by Consolidation Officer was restored. Being dissatisfied with the decision of Respondent No. 1, the petitioners filed instant writ petition. 3. Learned counsel for the petitioners maintains that impugned order of Respondent No. 1 is against law and facts; that learned Member Board of Revenue has not fully understood the controversy involved in the case and impugned order is not based on any sound reasoning; that appeal of Respondent No. 4 before lower appellate Court was time barred and this aspect was not taken into consideration by Respondent No. 1 while reversing the decisions of Courts below; that impugned order is not a speaking one as the same has been passed in violation of Section 24-A of the General Clauses Act, 1897; that basic scheme of the consolidation confirmed by the Consolidation Officer was against the spirit of consolidation laws and the fora below after properly thrashing out the matter came to the conclusion that respective possession of the parties was not considered and passed the orders dated 25.02.2008 and 22.03.2011, which were illegally upset by the Respondent No. 1. In last, he prayed for acceptance of writ petition in hand and setting aside of order dated 19.12.2014 of Respondent No. 1. 4. On the other hand, learned counsel for the respondents fully supported the impugned order by maintaining that the same has been passed in accordance with law and there is no reason to set it at naught. 5. I have heard the learned counsel for the parties at length and perused the record with their able assistance. 6. Admittedly, predecessor of the petitioners, namely, Sher Zaman was owner-in-possession of suit property measuring 08 Kanals and 02 Marlas bearing Khasra No. 1391 which, through consolidation scheme, was allotted in the name of predecessor of Respondent No. 4 namely Nawab Khan vide order dated 29.05.1962. It is pertinent to mention here that said Khasra number was previously allocated 1143 Min number and thereafter 1142 Min and after consolidation proceedings it was allocated 1301 and now it bears Khasra No. 1391. The petitioner failed to annex the consolidation scheme prepared by the Consolidation Officer which is a necessary document in order to resolve the controversy between the parties because it has to be seen whether predecessor of the petitioner was associated and present at the time of preparation of the consolidation scheme and he put his thumb impression or signatures as a token of correctness/acceptance or otherwise. The stance of the petitioner is that said consolidation scheme was prepared in absence of their predecessor while on the other side, Respondent No. 1 took the stance that said consolidation scheme was prepared in presence of the land owners and predecessor of the petitioner did not raise any objection upon said consolidation scheme at the time of its finalization. It is pertinent to mention here that in Province of Punjab Consolidation of holdings is dealt under cover of following statues: (i) The Punjab Consolidation of Holding Ordinance, 1960 (Ordinance No. VI of 1960) (herein after referred as Ordinance), and (ii) Punjab Consolidation of Holding Rules, 1998 (hereinafter referred as rules) made by The Board of Revenue, Punjab in exercise of the powers conferred on it by Section 29 of the Punjab consolidation of Holdings Ordinance, 1960. The provisions as contained in Section 9(3) of the Ordinance, 1960 provided constitution of an advisory committee or Punchayat to assist for preparation of scheme for Consolidation of Holdings, which reads as under: SECTION 9: PREPARATION OF SCHEME FOR CONSOLIDATION OF HOLDINGS AND APPOINTMENT OF ADVISORY COMMITTEE: (1) Where the land-owners making the application under sub-section (2) of Section 3 submit an agreed scheme for Consolidation of Holdings, the Consolidation Officer shall proceed with the application in such manner as may be prescribed.
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(2) If no agreed scheme is submitted with the application for consolidation, the Consolidation Officer shall prepare a scheme for Consolidation of Holdings in such manner as may be prescribed. (3) Subject to any rules made under Section 29, the Consolidation Officer may appoint an Advisory Committee or Panchayat to assist him in the preparation of a scheme for the Consolidation of Holdings. According to Section 10 of the Ordinance, 1960, before approving any scheme, the Consolidation Officer shall publish it and invite objections and after settlement of the objections finalize the scheme. For ready reference, Section 10 is reproduced as under: SECTION 10: PUBLICATION OF SCHEME, SETTLEMENT OF OBJECTION THERETO AND ITS CONFIRMATION--(1) The Consolidation Officer shall, before approving any scheme, publish it in such manner as may be prescribed. (2) Where objections are lodged by any person interested in the area covered by the schemes, the Consolidation Officer shall endeavour to bring about an amicable settlement. (3) If no objections are lodged, or where lodged the Consolidation Officer succeeds in bringing about an amicable settlement, he shall pass an order -confirming the scheme of consolidation. (4) If the Consolidation Officer fails to bring about an amicable settlement, he shall submit the scheme with his recommendations to the Collector, who after giving notice to the persons concerned and hearing them if they so desire, may, after further inquiry by himself or any Consolidation Officer, or without such enquiry, as he may deem fit, reject the scheme or confirm it with or without modifications. From above-quoted provisions it is crystal clear that before approving the scheme, the Consolidation Officer shall cause it to be published in the estate or sub-division in which the holdings are situated. The prescribe mode of publishing has been provided by Rule 16 which is beat of drum or other customary mode prevalent in the tract. After publishing the scheme the Consolidation Officer has to visit the estate, etc. and explain the scheme including proposal for the disposal of the encumbrances to all concerned. Such explanation shall be made in the presence of the members of the Advisory Committee. Then the Consolidation Officer shall invite suggestions or objections to the schemes and after considering them shall, so far as possible, remove the objections and if necessary modify the scheme. After the scheme has been prepared, it shall be exhibited by means of a map and a register of the scheme. The Consolidation Officer shall draw up a list of owners of land who are affected by the scheme. If the Consolidation Officer fails to bring about an amicable settlement, and nevertheless an order confirming the scheme without submitting it to the Collector, his order will be illegal. The Collector on reference of a scheme under sub-section (4) of this section would without confining himself to the disputed Khata sanction the whole scheme. 7. From perusal of rules it appears that Rule 2 defines certain expressions and some of relevant whereof are as follows: (a) "Applicant" means the landowners who have applied for the consolidation of their holdings under sub-section (2) of Section 3; (b) "Consolidation scheme" means a statement indicating the fresh distribution of land among the right holders in an estate or its sub-division as a result of consolidation; (d) "Musawada Scheme" means a framework of objectives, guidelines and general principles to be followed during consolidation proceedings in an estate or its sub-division. 03. Certain "PARCHAS" are defined in Rule 2 (fi of Rules as follows: (i) PARCHA MILKIAT AND QABZA means a document showing pre-consolidation ownership and possession of land holding of a landowner;
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(ii) PARCHA TAJWEEZ TAQSEEM: means a document showing land proposed to be distributed to a landowner; (iii) PARCHA TASDEEQ TAQSEEM: means a document showing distribution of land to a landowner, approved by the Consolidation Officer; (iv) PARCHA HATMI TAQSEEM: means a document showing land confirmed in the WANDA of a landowner; Part-II of Rules deals with consolidation applications. Rule 3 whereof reads that "A copy of every application for consolidation received by the Consolidation Officer shall be sent by him to the Collector for information, Rule 4(1) whereof reads that no application for consolidation of holdings under sub-section (2) of Section 3 shall be considered unless the landowners making the application hold together not less than two squares or two rectangles or fifty acres of cultivable land, whichever is more. Rule 5 reads that on the receipt of an application for consolidation, the Consolidation Officer shall examine the application and see whether it complies with the provisions of the Ordinance and of these rules, and, if it is not in order, or if for any other reason, the Consolidation Officer considers that the application should not be entertained, he shall recommend to the Collector that application may be rejected. Rule 5 also provides that no such recommendation shall be made unless the applicants have been given an opportunity of being heard and where necessary to amend their application. Rule 6 reads that if the Consolidation Officer admits the application or the Collector, after considering the recommendation of the Consolidation Officer under Section 7, allows the application, the Consolidation Officer shall record a formal order of its admission. Rule 7 deals with publicity of consolidation application/motion in the estate or sub-division of the estate in which the holdings referred to in the application or motion are situate informing all landowners of the receipt of the application or motion and the date, time and place when and where he will meet them and examine the application or motion. Such place shall be in the estate concerned or in proximity thereof. Rule 7(2) reads that the date fixed for the examination of, the application shall not be less than fifteen days from the date on which the proclamation is made. Rule 8(1) deals with enquiry by Consolidation Officer on publicized fixed date from the concerned landowners as well as to record objection or representation made at this stage. Rule 8(3) reads that The Consolidation Officer may postpone the proceedings for the purpose of facilitating an agreement being reduced to writing or for any other sufficient reason and Rule 8 (4) confines The Consolidation Officer to ascertain the consent of landowners as laid down in Section 4 in the manner prescribed in Rule 12. Rule 8(5) binds that, besides prescribed consent of the landowners, the following objectives/criteria for consolidation shall also be kept in view for allowing consolidation to proceed:- (a) Allocation reservation of land for common community purposes like school, playground, graveyard, paths, etc.; (b) Division of Shamlat; (c) Reduction of number of plots; (d) Partition of Joint Khatas; (e) Termination of illicit and unauthorized possession on private and Shamlat land in excess of entitlement; (f) any other point important in the specific circumstances of the Revenue Estate considered by the Consolidation Officer or indicated by the Collector. Rule 9 (1) reads that at the conclusion of the enquiry, the Consolidation- Officer shall record his finding and recommendations and send his report to the Collector, whereas following Rule 9(2) binds that on receipt the Collector shall cause the publicity of report of Consolidation Officer amongst the landowners by notifying it at a conspicuous place and by proclamation as
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prescribed in Rule 11 and shall give 15 days notice inviting objections from the landowners with a copy to the Collector of the Sub-Division as well as to hold a public meeting in the Estate or its Sub-Division alongwith the Consolidation Officer and Tehsildar or Revenue Officer Halqa. He shall apprise the landowners of the report of the Consolidation Officer and the objections received so far. Last mentioned Rule requires Collector to hear objections presented in the meeting and make a decision thereon with grace that if an adjournment is necessary, the next date and place of meeting may be announced on the spot. Rule 9 (2) also reads that, after concluding the hearing, collector may pass an order of allowing the consolidation to proceed or otherwise. Rule 11 specifies procedure of proclamation under the Punjab Consolidation of Holdings Ordinance, 1960 and these Rules, Rule 12 deals with procedure for obtaining consent of landowners, Rule 12(1) mentions starting Consolidation Operations with preparation of a list of landowners with number of Khata, share in the holding, area of the respective share separately shown as cultivable and uncultivable and for obtaining consent of landowners. Rule 12(2) deals with framing of the Advisory Committee, Rule 12 (3) deals with preparation of Musawada Scheme, Rule 12 (4) deals with proposal of distribution of land to a landowner. Rule 16 reads that boundary line of the Revenue Estate in the last settlement shall be taken as final for the consolidation operation and Rule 16(b) reads that boundary line of two Revenue Estates simultaneously under consolidation can be readjusted with the written permission of the Commissioner or Board of Revenue as well as envisages that if permission is not granted, the boundary line of the last settlement shall be treated as final. Rule 16 (C) reads that any excess or shortage of land on fresh measurement shall be distributed on the landowners proportionate to their holdings. Rule 17 prescribes that consolidation shall be made on the basis of Killa Bandi and, if the physical features of an estate do not permit, the condition may be waived by the Commissioner or Board of Revenue for specific reasons. Rule 18 prescribes partition of joint holdings. Rules 19 to 23 in Part-IV of Rules are related to matters of constitution of Advisory Committee, appointment of its president, removal of it's any member and functioning thereof Rule 24 in Part-V of Rules requires preparation of "Musawada Scheme", Rule 25 requires classification of land, Rule 26 prescribes procedure for framing "Musawada Scheme" and steps to be taken ahead thereafter. Rule 27 (1) requires The Collector to finalize the "Musawada Scheme" according to the procedure prescribed in Rule 9 and Rule 27(2) binds him down to send the final Musawada Scheme to the Consolidation Officer with a copy to the Commissioner. Rule 27(3) requires the Commissioner to decide the objections within 30 days and return the "Musawada Scheme" to the Collector with his directions, if any. Rule 27(4) requires that "Musawada Scheme" shall then be notified to the landowners by the Consolidation Officer in the prescribed manner and Rule 27(5) requires that said "Musawada Scheme" shall be made available for the information of the landowners. In Part-VI of Rules, Rule 28(1) requires that the preliminary record regarding land holdings giving number of KhatalKhatauni, Khasra/sub-Khasra, category of land, ownership and possession shall be prepared on the basis of latest Register Haqdaran Zamin and other periodical record i.e., Register Dakhil Kharij and Register Girdawari and Rule 28(2) suggests that, on the basis of the preliminary record of the estate, Register Milkiat and Qabza showing individual ownership and possession of each landowner shall be prepared by the Consolidation Officer in the prescribed Form and shall be notified by him in the estate as well as a copy of this Register shall be sent to. the Collector. Rule 29(1) requires that Parcha Malkiat and Qabza indicating land owned by a landowner with the position of possession on the basis of Register Milkiat and Qabza shall be issued by the Consolidation Officer to all the landowners in the estate giving details as" per Rule 28(1) and Rule .29 (2) permits any landowner to file objection before the Consolidation Officer within 30 days from the date of receipt of PARCHA MILKIAT AND QABZA or receipt of Register
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Malkiat. and Qabza in the office of the Collector, whichever is later as well as Rule 29 (3) requires Consolidation Officer shall hear the concerned landowner and decide the objection within 30 days, which order may be assailed in appeal under Rule 29 (4) before the Collector Within 30 days from the date of decision and Collector is bound down to take a decision within 30 days and intimate the same to the Consolidation Officer. Rule 30 requires. that Consolidation Officer shall incorporate the decisions of the Collector and prepare final draft of Register "Milkiat and Qabza" and send its copy to the Collector, whereas Rule 31 reads as follows: RULE 31: "Intiqal-e-Ishtrak (Mutation of Joint Ownership).--Prior to distribution of land to the right holders Intiqal-e-Ishtrak shall be attested by the Consolidation Officer to render entire land of the estate or its sub-division as a joint holding of all the right holders." PART VII of rules in Rule 32 deals with subject of examination of an agreed consolidation scheme and Rule 33 deals with preparation of the Consolidation Scheme. Rule 34 requires preparing of parcha Tajveez Taqseem by Qanungo and its delivery to each land owner against a receipt in the prescribed register. Rule 35(1) prescribes that, after at least 7 days from the delivery of Parcha Tajveez Taqseem, the Consolidation Officer shall, in consultation with the concerned landowners and the Advisory Committee approve the Wanda through a order in the relevant column, which Wanda shall be attested by at least 2 members of the Advisory Committee and the landowhers shall record his/their consent as per Rule 12, Rule 36 (1) requires that The Consolidation Officer shall get prepared Parcha Tasdeeq. Taqseem in respect of each Wanda and ensure its delivery to the concerned right holder recording the delivery in the prescribed register. Rule 36 (2) requires that, before the confirmation of the consolidation scheme of an estate, if some changelad justment in Wanda is necessitated, the Consolidation Officer shall do so after notice to the right holders likely to be affected thereby. The consent or otherwise shall be recorded as well as Rule 36(3) requires that, on each amendment, amended Parcha Tasdeeq Taqseern shall be delivered to the landowner against receipt in the register. Rule 37 deals with finalization of the Consolidation Scheme by Consolidation Officer and forwarding to the Collector for appraisal. Rule 38 (1) suggests that, on receipt of the consolidation scheme, the Collector shall notify the scheme to the landowners by proclamation and after at least 15 days notice, shall hear the landowners in the estate in an open assembly and shalt satisfy himself that: (a) The scheme has been prepared in consonance with the objectives/criteria laid down in the consolidation law, rules and the Musawada Scheme. The consent of the landowners has been recorded correctly; and (c) Parcha Tasdeeq Taqseem has been distributed to all the landowners. Rule 39 deals with confirmation of Consolidation Scheme, Rule 41 deals with issuance of Parcha Hatmi Taqseem, whereas Rule 43 deals with Inteqal-e-Taqseem. Reading as follows: RULE 43: "After confirmation of the consolidation scheme, the Consolidation Officer shall attest Intiqal-e- Taqseem creating, individual rights of the landowners according to the fresh distribution of land." Rule 44 requires that Consolidation Officer shall get the boundaries of the holdings demarcated, whereas Part- VIII deals with "MISAL HAQIAT", Rule 45 whereof reads as follows: RULE 45: "After confirmation of the Consolidation Scheme, papers documents shall be prepared as prescribed by the Board." 8. It is evident from said rules that the Consolidation Officer before distribution of land to the right holders shall attest an "Intiqal-e-Ishtrak" to render entire land of the estate or its sub-division as a
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joint holding of all the right holders. After conformation of the consolidation scheme, he shall attest "Intiqal-e-Taqseem" by creating individual rights of the land owners according to the fresh distribution of land. After conformation of the scheme record of rights shall be prepared. During that process previous khasra numbers will be changed and abolished and fresh khasra numbers will be allocated. That is the reason the process of consolidation is not only exhaustive but also time consuming. Perusal of the file shows that the Advisory Committee associated land owners during the process of preparation of consolidation scheme and the Consolidation Officer before finalization of the scheme took the signatures/thumb impressions of the Advisory Committee as well as land owners as a token of correctness and acceptance. Mere simple denial by the petitioners side that their predecessor was not associated during preparation of consolidation scheme cannot be relied upon in presence of statutory provisions of law. 9. Admittedly, consolidation scheme was approved and passed on 29.05.1962. The predecessor of the petitioner as well as petitioners failed to challenge said scheme/order for considerable length of time and they filed appeal after a lapse of 45 years. Respondent No. 3 ignored this important fact while setting aside the order of Consolidation Officer dated 29.05.1962 on 25.02.2008. Admittedly, the entitlement of both of the parties remained intact even after approval of consolidation scheme. 10. The grievance of the petitioners is that Khasra No. 1391 measuring 08 Kanals and 02 Marlas was exclusively owned and possessed by them prior to the consolidation but said Khasra number has been given to Respondent No. 4 and in lieu of it Khasra No. 2181 owned and possessed by Respondent No 4 was illegally given to them. They accordingly prayed that said Khasra No. 2181 be given to the Respondent No. 4 and their Khasra No. 1391 be given to them. The basic purpose of the consolidation is to adjust and consolidate the land holdings in as much as they can be placed near to land already owned and possessed by each land owner by making a compact block. The expression "Consolidation of Holdings" has been defined in Section 2(f) of Ordinance, 1960 in the following manner. "Consolidation of Holdings means the re-distribution of all or any of the land in an estate or Sub- Division of an Estate so as to reduce the number of plots." It is clear from the said definition that consolidation of holdings means the re-distribution of the land. The question as to which Killa number should have been given to the party is within the exclusive jurisdiction of Consolidation Authorities. The august Supreme Court of Pakistan in the case of Muhammad Hayat and other vs. Member (Consolidation) Board of Revenue and others (2007 SCMR…
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