Muhammad Daud Khan, J.--Muhammad Rehman Zaib and others (petitioners herein) have brought the instant constitutional petition, seeking the issuance of an appropriate writ with the prayer: "[T]o set aside the impugned order dated 13.2.2013 of Respondent No, 20 (Member Board of Revenue) and be declared as illegal, unlawful, without lawful authority and order of the trial Court may be restored".
2. In the year 2011, the petitioners made an application before the Deputy District Officer Revenue (Judicial), Kohat, for partition of certain land within the meaning of Section 135 of West Pakistan Land Revenue Act, 1967 (hereinafter as the "Act"). The land in question bears Khata # 45 and 46 and is situated in the Revenue Estate, Kuru of Tehsil and District, Kohat. By means of an Order dated 22.12.2011, the Deputy District Officer (Judicial) accepted the application, directing that the mode of partition of the land in question shall be determined.
3. The respondents party got aggrieved with the Order dated 22.122011. They preferred an appeal before the Collector/DOR, Kohat. Their appeal was however, dismissed, vide a Judgment and Order dated 21.2.2012. Their Revision before the Additional Commissioner, Kohat, also failed on 15.5.2012.
Still feeling aggrieved, the respondents filed a second revision petition before the Member Board of Revenue (MBR), which was accepted vide Judgment and Order dated 13.2.2013. The learned MBR remanded the matter to the learned trial Court for conducting the partition proceedings afresh. It is the decision of the learned MBR which has been challenged before this Court in the instant writ petition.
4. Mr. Muhammad Amin Khattak Lachi, Advocate, learned counsel representing the petitioners contended that all proceedings of partition before the learned Deputy District Revenue Officer (Judicial) were conducted according to the revenue laws. He assailed the decision of the learned MBR, arguing that it is illegal, based on presumption without reasonable ground and the result of misreading and non-reading of evidence. He maintained that Naqsha 'Alif', ' Bey', `Jeem' were prepared in the presence of joint owners and the measurement of the partitioned land was given effect after obtaining the consent of the parties concerned. He further argued that the learned MBR has granted a relief which the respondents did not seek.
5. Conversely, Haji Muhammad Zahir Shah, Advocate, learned counsel representing the respondents supported the impugned order passed by the learned MBR. At the outset, the learned counsel objected to the partition proceedings conducted by the Patwari Halqa, arguing that a Patwari is not Revenue Officer under the Act.
6. We have gone through the record and carefully considered the submissions of learned counsel for the parties.
7. The record of the case depicts that the petitioners moved. Their application before the Deputy District Officer Revenue (Judicial) on 18.7.2011. It appears that on the very first day of submission of the application, the Deputy District Officer (Judicial), Kohat ordered for substituted service of the respondents. The notice, which was ordered to be published in daily the Ausaf newspaper, appeared in the issue published on 4.8.2011. The date fixed for the attendance of the respondents was 5.8.2011, next to the date on which the notice was published in the newspaper. The respondents, however, appeared on date fixed (i,e, 15.8.2011). They submitted a reply in which they raised both legal and factual objections. The learned Deputy District Officer Revenue (J) without inquiring into the matter, directed the Patwari Halqa to prepare site-plan, duly attested by Girdawar Circle and submit the same on 30.8.2011 In compliance thereof, the Patwari Halqa submitted Naqsha 'AU on 9.9.2011. He was again directed to prepare and submit site-plan regarding the possession of the sharers. Subsequently, on the request of the Patwari Halqa, the Deputy District Officer Revenue (Judicial) passed an Order on 15.9.2011, appointing one Dilbar Khan, a retired Patwari, as local commission. In a haphazard manner, the local commission conducted the partition proceedings on 27.11.2011 and submitted the goshwara of shares, the site-plan, tatima Aks and the Field Book.
8. The question for determination by the Court is that whether the learned MBR has rightly set aside the decisions of the lower forums and remanded the matter to the Deputy District Officer Revenue (Judicial). While answering this question, it is pertinent to critically examine the partition proceedings conducted before the Deputy District Officer Revenue (Judicial) and see their validity in the eyes of the applicable law.
9. The Act deals with partition proceedings under Chapter-IX. A joint owner of the land in the revenue estate may seek partition of his/her share under Section 135 of the Act, provided the land subject to partition does not come within the restriction and limitation mentioned under Section 136 of the Act.
10. The mode of partition of land is provided in Section 142 of the Act, which, for the sake of ready reference, is reproduced under: "142. Disposal of other question.
(1) When there is a question as to the property to be divided, or the mode of making a partition, the Revenue Officer shall, after such inquiry as he deems necessary, record an order stating his decision on the question and his reasons for the decision.
(2) An appeal may be preferred from an order under subsection (1) within thirty days from the date thereof and, when such an appeal is preferred and the institution thereof has been certified to the Revenue Officer by the authority to whom the appeal has been preferred, the Revenue Officer shall stay further proceedings pending the disposal of the appeal.
(3) If an applicant for partition is dissatisfied with on original or appellate order under this section, and applies for permission to withdraw from the proceedings insofar as they relate to the partition of his share he shall be permitted to withdraw, therefrom on such terms as the Revenue Officer thinks fit.
(4) When an application withdraws under the provisions of sub-section (3), the Revenue Officer, may, where the other applicants, if any, desire the continuance of the proceedings continue them insofar as they relate to the partition of the shares of those other applicants."
Thus the law clearly provides that a Revenue Officer shall decide the question as to the land to be partitioned or mode of partition by holding necessary inquiry and record his decision on basis of sound and cogent reasons. Even otherwise, all the inquiries conducted under the Act are judicial proceedings as laid down under Section 27 of the Act, which reads as under:
27. Inquiries under the Act to be deemed judicial proceedings.
(1) Every inquiry under this Act shall be deemed to be a `judicial proceedings' within the meaning of Sections 193, 219 and 228 of the Pakistan Penal Code, 1860 (Act XLV of 1860) and the Revenue Officer holding an inquiry shall be deemed to be a Court for the purposes of such inquiry.
(2) Every hearing and decision in such inquiry shall be in public and the parties or their authorized agents shall have due notice to attend".
11. We observe with great concern that in the instant partition proceedings, the Deputy District Officer Revenue (Judicial) did not make any inquiry by itself. Rather, as the record demonstrates, the partition proceedings were conducted the Patwari Halqa and, more so, on the request of the Patwari Halqa, a retired Patwari was appointed as local commission. It appears as if the patwari have acted like Courts and the Deputy District Officer Revenue (Judicial) has subscribed to the proceedings of the patwaris just in a mechanical fashion.
12. Section 7 of the Act provides the hierarchy to be Revenue Officer, namely,-
(a) the Board of Revenue;
(b) the Commissioner;
(c) the Collector;
(d) the Assistant Collector of the first grade;
(e) the Assistant Collector of the second grade.
Classes of Revenue Officers are mentioned in the above section and all of them have to work within their own parameters in view of the statutory laws/rules/notifications. A Revenue Officer is empowered under Section 20(3) of the Act to refer any case which he is competent to dispose of under the Act to any other Revenue Officer subordinate to him for investigation and report.
13. A Tehsildar is generally an Assistant Collector of second grade though he may be invested with powers of 1st grade. A Naib Tehsildar is an Assistant Collector of the second grade. A Giradawar Circle or a Patwari cannot be vested with the power of a Revenue Officer to conduct the inquiry under the Act. The important point to be kept in mind is that the power and authority set in law is not transferable, otherwise than provided in law.
14. In the instant partition proceedings, all the orders made by the Revenue Officer as trial Court, the inquiry conducted by fPatwari and the appointment of retired Patwari as local commission, are contrary to the Act. Though the Revenue Officer can appoint commission for proceedings under the Act but it is also conditional with ranks that fall within the ambit of the Revenue Officer under Section 7 of the Act. For convenience, Rule-10 of the West Pakistan Land Revenue Rules, 1968 may be reproduced here: "10. Record to other proceedings under the Act.--In other proceedings under the Act, not being proceedings under Section 141, the Revenue Officer shall make, with his own hand a brief memorandum of the statements of parties and witnesses at the time when each statement is made".
15. Invariably it has been noticed in partition cases that the Revenue Officer takes least interest and the whole process of partition is entrusted to the Patwari Halqa. This dangerous practice has contributed to most of the litigation amongst the co-owners, which can be averted, if Revenue Officer adhered to his responsibilities. Chapter-18 of the Land Record Manual is a complete and comprehensive code of procedure for partition. Clause 18.3 of Chapter-18 stipulates that only Tehsildar or Naib Tehsildar will investigate the matter of partition and submit report. Similarly, clause 18.10 provides that Tehsildar . Should proceed to inquire into any question regarding partition amongst the parties. In terms of clause 18.12, the Tehsildar shall give, on the spot, detailed instructions to the Patwari and as little as possible should be left to Patwari. Clause 18.14 provide further safeguard against errors in partition paper, by making Kanungo responsible for scrutiny and assigning verification. The Land Record Manual has plugged every loophole and nothing has been left to the discretion of a Patwari. Every now and then, we come across cases where Patwaris are found hand in gloves with one of the party and rob I the other co-owners. In most of the cases, maps are chalked and tatimas are carved out at the instance of their blue eyed chaps, in absence of other owners, little caring that this practice is illegal, unwarranted and antithesis of their office duty, for which, they are accountable and liable to be proceeded against departmentally and also to be prosecuted under the Anti-Corruption Laws, if found involved in such practice. We are constrained to express our anguish and disapproval against rampant foul play with Revenue Record at the hands of its custodians. The office of Patwari is repository of public trust. The property record and interest of public-at-large is entrusted to him with assurance that he would jealously safeguard the public interest. But when trustee plays havoc with the public record, outcry of public is inevitable. It is an open secret that Courts are flooded with litigation due to foul play with their interest in revenue record. The office of Patwari is main contributory towards influx of civil litigation.
There must be end of it. There must be some check against the shenanigans of patwari office. The peoples at helm of affairs, are required to take concrete steps to curb this menace. Let some are involved in such foul play be taken to task, to put the others at guard. Let someone take the initiative. Why wait for tomorrow? Why not now? Let some are caste the first stone, to alleviate the agonies of public-at-large.
16. In light of what has been discussed above, we are of the considered view that all the partition proceedings conducted by the Patwari Halqa and a Retired Patwari as local commissioner are without any legal authority, null and void. The order passed by the learned MBR is thus held to rightfully made, putting at naught the order of the Deputy District Officer Revenue (Judicial).
17. Though the learned Member Board of Revenue set aside the said order and remanded the case to the trial Court for fresh partition in presence of the parties but it is not enough. Being Apex fora of revenue hierarchy, he should issue direction to decide the partition proceedings according to mode and manner provided under the relevant law and rules, as discussed in Para-15 of the judgment.
18. Before parting with this judgment, this Court takes an opportunity to observe that the Senior Member Board of Revenue shall issue directions to all the Revenue Officers especially to all the Collectors in the province that before issuance of any direction in partition suit, trial Court shall make inquiry in judicial manner and further the procedure provided in Chapter-18 of the Land Record Manual. If necessary, appoint commission (revenue officer) not below the rank of Assistant Collector 2nd Grade to conduct the inquiry and proceedings.
19. A copy of this judgment shall be sent to the learned Senior Member Board of Revenue for compliance and circulation to the District Commissioners in the province.
20. In view of the above, the instant writ petition is dismissed.