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Petitioner: SHAMIR KHAN VS Respondent: MUHAMMAD ISMAIL
1992 C L C 641
1992 C L C 641
[Board of Revenue Punjab]
Before Hafeezullah Ishaq, Member (Consolidation)
SHAMIR KHAN‑‑‑Petitioner
versus
MUHAMMAD ISMAIL and 5 others‑‑‑Respondents
R‑O.Rs. Nos. 1311, 1520 and 1567 of 1988, decided on 21st March, 1990.
(a) West Pakistan Consolidation of Holdings Ordinance (VI of 1960)‑‑‑
‑‑‑‑S. 9‑A‑‑‑Exclusion of land from Consolidation Scheme‑‑‑No application was made to exclude specific land from Consolidation Scheme‑‑‑Violation of law not committed in consolidation scheme‑‑‑Land excluded from purview of consolidation would be land which was occupied as a site of any building in a town or village‑‑‑Land for consolidation had to be ordinarily occupied or let for agricultural purposes or for purposes subservient to agriculture and included the sites of buildings and other structures on such land‑‑‑Where some of the land was being used for purposes of a petrol pump and other structures while lands contiguous to or surrounding that were being used for agricultural purposes and no objection was raised to its inclusion in the consolidation operation at the appropriate time or even later before any Authority and such land having not been excluded from consolidation, Consolidation Authorities had not committed any violation of the law by including such land in the Consolidation Scheme.
(b) West Pakistan Consolidation of Holdings Ordinance (VI of 1960)‑‑‑
‑‑‑‑S. 13‑‑‑Condonation of delay‑‑‑Explicit order for condoning delay‑‑ Collector's order as also Additional Commissioner's order not adverting to question of delay in filing appeals etc.‑‑‑Implicit condonation of delay was not favoured by higher Courts and a specific order regarding condonation of delay had to be passed.
(c) West Pakistan Consolidation of Holdings Ordinance (VI of 1960)‑‑‑
‑‑‑‑S.13‑‑‑Consolidation Scheme‑‑‑Additional Commissioners order wherein merits of individual claims of parties had been discussed at length, except observations regarding implicit condonation of delay, his reasons for making impugned order were unexceptionable‑‑‑No illegality or irregularity having been found in the order in question, interference therein, was not warranted.
Muhammad Iqbal Sargana for Petitioner (in R.O.R. No.1311/1988 and on behalf of Respondent No.2 (in R.O.R. No. 1520 and No.1 (in R.O.R. No.1567 of 1988).
Khizar Abbas for Respondent No.1 (in R.O.R. 1311 of 1988) and for Petitioner (in R.O.R. No.15(7 of 1988) and for Respondent No.1 (in R.O.R No.1520 of 1988).
Abdul Aziz Qureshi for Petitioner (in R.O.R. 1520 of 1988)
Muhammad Hussain Awan for the Impleading Party.
Date of hearing: 20th February, 1990
ORDER
These revision petitions are directed under section 13 of the Consolidation of Holdings Ordinance, 1960 against the order dated 27‑6‑1988 of the Additional Commissioner (Cons.), Sargodha Division, whereby he rejected the appeal of Fazal Shah etc. and accepted the appeal of Shamir Khan.
2. Brief facts of the case are that the Consolidation Scheme of village Malhoana Tehsil and District Jhang was confirmed under section 10 (3) of the Consolidation of Holdings Ordinance, ibid by the Consolidation Officer on 27‑3‑1980. Muhammad Ismail, feeling aggrieved, filed an appeal in the Court of the Collector (Cons.) who vide his order dated 10‑3‑1988 accepted it and made certain amendments in the Wandas of the parties. He held in his order that the land in dispute had been in physical possession of Muhammad Ismail. Shamir Khan had made an agreement on 4‑9‑1971 with Muhammad Ismail. On that agreement Muhammad Ismail was given double area adjacent to the road in exchange of land relating to petrol pump. Sh. Muhammad Iqbal after purchasing the half land from the said area made a partner in the said petrol pump. He made amendments on the basis of previous possession of the parties. Shamir Khan and Fazal Shah etc. assailed this order in the Court of the Additional Commissioner (Cons.) who vide his impugned order dismissed the appeal of Fazal Shah etc. and accepted the appeal of Shamir Khan. He made certain amendments in the Khatas of the parties. In deciding the appeal of the said Fazal Shah etc. he held that the changes in the Wandas were made on the basis of previous possession of the parties on Shamlat land. The decision is justified and in accordance with law. Fazal Shah etc. did not have ant possession on this land, therefore, they do not have any claim on this land. Fazal Shah etc. were allocated share of Shamlat according to their entitlement.
3. In an appeal filed by Shamir Khan, the Adds. Commissioner (Cons.) held that the land of Shamlat was distributed keeping in view the previous possession of the right holders. 13;. held in his order that the Khasra Nos. d 2:1;0/2 and 1231/2 were purchased by Shamir Khan in Khana‑i‑Kasht on 27‑4‑1972 vide Mutation No.980. Shamir Khan has six shops on the part of this land. Therefore, it appears that this was in the possession of Shamir Khan. The Consolidation Officer who visited the spot has stated that six shops constructed on this Khasra number are in possession of Shamir. However, rest of the land has been in possession of Muhammad Ismail. According to the record only in one Khasra number 1/4th possession of Muhammad Ismail has been recorded. Since the original purchase in Khana‑e‑Kasht and possession of Shamir is recorded in this portion of land, therefore, in the interest of justice this portion of land is reverted to Shamir Khan. In consolidation scheme he was given 2 Kanals 17 Marlas of land instead of 4 Kanals 11 Marlas of land. The rest of the land was given to Muhammad Ismail. According to record Muhammad Ismail had possession on Killa No.16/3,25/25/2 of Sq. No.86 and in Square No.87, Khasras Nos.20/2, 21/2, 21/1. In the order the Collector had given all this land to Muhammad Ismail which is not correct. The second mistake committed by the Collector (Cons.) is that Shamir Khan has been thrown in Scheme No.129 which is joint with Muhammad Ismail. The mutation of this joint scheme was passed after the Consolidation scheme, therefore, the position of this scheme is not to be touched. In fact Scheme No.129 was passed in favour of Sultan Khan etc. In lieu of this land taken from Shamir Khan he is to be given land from Scheme No.127 which is adjacent to his land. The possession has been kept in view in consolidation because this is Shamlat land. Shamir wants that land given to him in consolidation scheme near the road side should be kept with him. This was in the joint ownership of Shamir Khan and Muhammad Ismail but on ground the possession of Muhammad Ismail near the road side has been proved according to the record and report of the Consolidation Officer. He amended the Wandas of the parties. Hence these revision petitions.
4. These three revision petitions under section 13 of the Consolidation of Holdings Ordinance, 1960 are taken together as they are directed against the same impugned order dated 27‑6‑1988 of the Additional Commissioner (Consolidation), Sargodha/Faisalabad.
5. The learned counsel for Shamir Khan contended that Muhammad Ismail respondent filed an appeal before the ADC/Collector (Cons.) in which he prayed for restoration of 4K‑18M but the Collector (Consolidation) had given him 24‑K which was much beyond the respondents' prayer and the grounds of appeal. Similarly the Additional Commissioner had made further changes in the petitioner's Wanda and his best land was given to the respondents. The respondent Muhammad Ismail's appeal before the ADC/Collector (Cons.) was barred by time by more than 8 years and the delay was never condoned by the ADC/ Collector (Cons). Further that the petitioner had been put to a great loss as the Consolidation Authorities had no jurisdiction to indulge in a place which was not covered under the definition of land and contained structures such as shops etc.
6. The learned counsel of Muhammad Ismail respondent maintained that the respondent was in jail when consolidation operation was being carried on. He applied for condonation of delay before the Collector (Cons.) and some relief was given to him. There was an agreement between the parties but still the Additional Commissioner (Cons.) had taken some land from the respondent against the agreement. The Additional Commissioner (Cons.) had duly taken into consideration the report of the Consolidation Officer dated 14‑6‑1988 regarding situation on the spot.
7. The learned counsel for Shamir Khan stated that Ismail respondent remained in jail for a few days and the so‑called agreement between the parties was never produced before any Court earlier.
8. The learned counsel for Fazal Shah etc. stated that the petitioners had constructed a building on old Khasra No.3372/1229 which was rented out to a bank in 1976. The respondent Muhammad Ismail while filing a time‑barred appeal before the Collector (Cons.) had asked for restoration of 4 Kanals 18 Marlas but he instead received 24 Kanals from that Court which was further enhanced to 94 Kanals by the Additional Commissioner (Cons.). The question of limitation was never considered by ADC/Collector (Cons.) and Fazal Shah's application for demarcation before various authorities remained unattended. This Khasra number had been allocated to Ismail. Both Ismail and Shamir etc. had purchased specific Khasra number and were not entitled to any share in Shamlat Deh. The petitioners prayed for restoration of the original scheme.
9. It was maintained on behalf of the respondents that this Khasra number was an evacuee property which was fraudulently got allotted by the petitioners and the respondents' case was pending before the Settlement Authorites.
10. I have considered the arguments, seen the case record and the sketch map prepared by the Patwari and various other relevant documents. Two points which have been argued during the course of hearing of these revision petitions relate to consolidation of lands containing structures such as buildings, houses, shops and petrol pumps and the implicit condonation of delay as held by the Additional Commissioner in the impugned order.
11. The term "land" has not been defined in the Consolidation of Holdings Ordinance and we may have to refer to section 4 (i) of the Punjab Tenancy Act, which reads as under:‑‑
'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."
This definition is similar in essential details to the one given in the Punjab Alienation of Land Act. The land excluded from the purview of the Consolidation of Holdings Ordinance would, therefore, be land which is occupied as a site of any building in a town or village. The land for consolidation has to be ordinarily occupied or let for agricultural purposes or for purposes subservient to agriculture and includes the sites of buildings and other structures on such land. In the instant case some of the land is being used admittedly for purposes of a petrol pump and other structures while the lands contiguous to or surrounding that were being used for agricultural purposes and no objection was raised to its inclusion in the consolidation operation at the appropriate time or even later before any authority. The case record does not show that any application at any stage of the consolidation of holdings proceedings was made under section 9 (a) to the Board of Revenue for exclusion of the land from the consolidation scheme before its confirmation. Since this land was surrounded by agricultural land and was not excluded from the consolidation operations, therefore, the Consolidation authorities have not committed any violation of the law by including it in the consolidation scheme.
12. The second objection was regarding implicit condonation of delay by the ADC/Collector (Cons.) as held in the impugned order. A perusal of the ADC/Collector (Cons.)'s order dated 10‑3‑1988 shows that the learned ADC/Collector (Cons.) has not adverted to the question of delay at all. Implicit condonation of delay is not favoured by the higher Courts and a specific order regarding condonation of delay has to be passed: To that extent the orders of both the learned Courts below are incorrect. However, officers in the consolidation department are drawn from diverse backgrounds and some of them may not be well‑versed in procedural requirements of the law and may have a tendency to go for the essence of the matter. By not recording reasons for condonation of delay, but otherwise deciding the case on merits the Collector has committed an inadvertent omission. The Collector (Cons.)'s order is, therefore, allowed to stand with the above observation. Another point related to the grounds of appeal before the Collector (Cons.). The Collector (Cons.)'s order clearly mentions that Muhammad Ismail had originally applied for restoration of Khasras Nos.86/16/1 and 10/5/1 and 5/2 measuring 4 Kanals 18 Marlas. But later on the grounds of appeal were amended and other Khasras numbers were also added. Therefore, it is incorrect to suggest that Collector (Cons.) had granted relief to Muhammad Ismail etc. beyond the grounds of their appeal. The merits of individual cLalms of the parties have been discussed at length by the learned Additional Commissioner (Cons.) in the impugned order and except his observation regarding implicit condonation of delay his reasons for making the impugned order are unexceptionable. I do not find any illegality or impropriety in the impugned order. No intervention is, therefore, indicated and the revision petitions are accordingly dismissed.
AA./417/R Revision petitions dismissed.