Petitioners have questioned the orders of revenue hierarchy whereby demarcation proceedings were concluded and his objection to the execution of the demarcation report was turned down.
2. Learned counsel for petitioners argued that initially application for demarcation proceeding has not been signed by the applicant nor any of the adjacent owner including the petitioners have been impleaded in the said application. He maintained that in terms of Rule 67-A of Land Revenue Rules, 1968, applicant was required to implead all the adjacent owners; that they challenged the order of the Collector before the Commissioner in appeal as well as by filing revision before the Senior Member Board of Revenue but were turned down, hence the instant petition.
3. Learned counsel for respondents contended that initial order of 20.7.2007 for conducting demarcation has not been challenged, hence it has attained finality; that respondent filed application under Section 122 of the Land Revenue Act, 1967 for recovery of possession in compliance with Rules 67-A & 67-B of Land Revenue Rules, 1968. He maintained that petitioners had alternate remedy of filing review and second revision petition, but they have not availed the same, hence the' writ petition is not maintainable.
4. I have heard learned counsel for the parties and have gone through the record with their valuable assistance.
5. Available record suggests that Arbab Athar Khan Respondent No. 1 filed application before the District Officer Revenue and Estate for demarcation of Khasra No. 158/1, 159 & 157 of Revenue Estate Panaam Dheri. It is admitted position that no adjacent owner has been impleaded in the application. Same is the position in the report of Patwari Halqa which does not hint towards summoning of any contiguous owner at the time of demarcation proceedings. The report concludes with the remarks that Muhboob Ali S/O Wahab Khan and Naseehat S/O Shakoor are in possession of Khasra No. 158/1 on western side of the path whose names do not figure in the revenue record. None of the petitioners were associated with the demarcation proceedings because report Annexure-B is silent to this effect. Respondent Athar Khan filed application under Section 122 of the West Pakistan Land Revenue Act, 1967 for recovery of possession of the part of the property found in possession of the petitioners. In this application, petitioners were impleaded in the panel of respondents. Petitioners filed replication wherein they raised various objections, factual and legal, including the lack of jurisdiction. The objection of the petitioners was turned down by the District Officer Revenue & Estate on 28.7.2011 and Office Qanoongo Office Mathra was directed to hand over the possession of Khasra No. 158/1 to the applicant, now Respondent No. 1, with further direction to submit report within 15 days. The order was maintained up to the Senior Member Board of Revenue.
6. The revenue hierarchy has proceeded to implement and hand over possession of alleged encroached property to the applicant, now Respondent No. 1, purportedly in exercise of power under Rules 67-A & 67-B of West Pakistan Land Revenue Rules, 1968. The question before the Court, is as to whether the District Officer Revenue and Estate/Collector was competent to entertain the application for recovery of possession and proceed to direct handing over possession of encroached property to the applicant or otherwise?. Chapter-X of the Land Revenue Act, 1967 deals with surveys and boundaries of the revenue estates and preparation of the record of rights. Section 117 of the ibid Act defines the limits of any estate or 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 applicant moved the revenue hierarchy under Section 117 of the ibid Act for defining the limits of his field mentioned in his application. The Revenue Board has been authorised under Section 121 of the ibid Act to make rules as to the manner in which boundaries of all or any of the estates in any local area is to be demarcated. Section 122 of the ibid Act stipulates the effects of settlement of boundaries and consequential proceedings to be undertaken. Being the corner stone of the dispute in hand, Section 122 is reproduced in extenso: <u><b>"122. Effect of the settlement of boundary.</u></b>--(1) The settlement of a boundary under any of the foregoing provisions of this Chapter shall, subject to the provisions of Chapter XIII, be determinative--
(a) of the proper position of the boundary line or boundary marks, and
(b) of the rights of the land-owners on either side of the boundary fixed in respect of the land adjudged to appertain, or not to appertain, to their respective holdings.
(2) Where a boundary has been so fixed, the Collector may, under rules to be framed in this behalf by the Board of Revenue with the previous approval of Government, evict any land-owner who is wrongfully in possession of any land which has been adjudged in the settlement of a boundary not to appertain to his holding or to the holding of any person through or under whom he claims."
7. By virtue of ibid 'Section boundaries' determination under Section 117 of the ibid Act would be subject to Chapter-XIII relating to appeals and revisions, and shall be determinative of the proper position of the boundary line or boundary marks or rights of the land owners on either side of the boundaries. Sub-clause (2) of the ibid section provides a mechanism for eviction of any land owner who is in wrongful possession of any land, which has been adjudged in the settlement of a boundary not to appertain to his holding or to the holding of any person through or under whom he claims. However, this power can only be exercised by the Collector under the Rules to be framed in this behalf by the Board of Revenue, with prior approval of Government. Bare perusal of sub-clause
(2) reflects that eviction from any part of the field, found in illegal possession of an adjacent owner, can only be ordered under the Rules to be framed by the Board of Revenue. Learned counsel for respondent relied upon Rules 67-A & 67B of the West Pakistan Land Revenue Rules, 1968.A glance on Rules 67-A & 67-B of ibid Rules manifests that both the Rules were adder vide Punjab Amendment Notification No. 2313-73/629-LR-I, dated 23.11.1973. Both the Rules were not part of original Rules of West Pakistan Land Revenue Rules, 1968, applicable to the whole of West Pakistan, later on adopted by all the four provinces. Had Rules 67- A & 67-B been part of the original Rules of 1968, those would have been applicable to the K.P.K. as well. The Rules were added vide Punjab amendment introduced in 1973, when the Province of West Pakistan (Dissolution) Order, 1970 (President Order No. 1 of 1970) had been issued, three years prior thereto. By that order, effect of continuation and adaptation was given to existing West Pakistan Laws for the purpose of all the Federating Units. By then Rules 67-A & 67-B were not part of West Pakistan Land Revenue Rules, 1968, so are not applicable to any other province, except Punjab. Since Punjab, KPK, Sindh and Baluchistan had become independent provinces/federating units by virtue of President Order No. 1 of 1970 (Province of West Pakistan (Dissolution) Order, 1970) in their own rights, so all the provinces had their own respective Boards of Revenue, since 1970. Rules making power, by virtue of Section 122(2) of the Land Revenue Act, 1967, has been vested in the Board of Revenue which has not been exercised nor invoked by the Kh. yber Pakhtunkhwa Board of Revenue, to frame Rules for purpose of Section 122 of the Land Revenue Act, 1967. In absence of such Rules, in K.P.K., laws of the other province, not adopted by any statutory instrument cannot be applied. In view of this legal position, the order passed by the. District Revenue Officer Revenue & Estate/Collector, for eviction of petitioners and handing over possession to the respondent is illegal and without jurisdiction, being not backed by any law and Rules. The orders passed, proceedings initiated and action taken without jurisdiction are amenable to the judicial review under writ jurisdiction and consequently are liable to be set aside.
8. For what has been discussed above, instant petition is allowed, impugned order of the District Officer Revenue and Estate dated 28.7.2011 and successive orders of Commissioner as well as Senior Member Board of Revenue, being illegal, without jurisdiction are hereby struck down.
9. Before parting with the judgment, it is imperative to observe that the Board of Revenue KPK, has failed to discharge its obligation by framing Rules in terms of Section 122(2) of the Land Revenue Act, 1967, which is essential and mandatory requirement, in the interest of public at large. In absence of such Rules, an aggrieved person in K.P.K. has to first establish illegal possession of an encroacher on his property and then to have recourse to civil suit for recovery of possession which is an uphill task. In the circumstances, the Board of Revenue is well advised to act in accordance with law and to do what is required by law to do by discharging its legal obligation, under the salutary command of Section 122 of the Land Revenue Act, 1967 and make appropriate rules in accordance therewith. Copy of this judgment for compliance be sent to the Senior Member Board of Revenue, KPK, Peshawar, and Ministry of Law, Parliamentary Affairs and Human Rights Department, KPK, Peshawar, as well as Chief Secretary, KPK.