IKRAMULLAH KHAN, J.---Through the instant constitutional petition, petitioner has challenged the impugned judgment dated 28.11.2013 rendered by Member, Board of Revenue, Khyber Pakhtunkhwa, whereby, the revision petition filed against the impugned judgment of learned Additional Commissioner, Malakand Division dated 23.03.2013 was accepted and the impugned judgment ibid was set aside and remanded the case to the Revenue Officer to carry out the demarcation proceedings in the matter in accordance with law.
2.In essence, respondents Nos.1 to 5 filed an application for demarcation of their land from the State property before District Officer, Revenue (respondent No.8), who entrusted the same to Tehsildar, Munda District Dir Lower with the direction to inspect the spot in presence of revenue staff and thereafter submit his report.
3.The same application was turned down by respondent No.8 on the plea that some execution proceedings are pending with regard to State property before the learned District Judge, Dir under the direction of High Court.
4.An appeal was preferred against the impugned judgment dated 13.12.2012 rendered by respondent No.8 to learned Additional Commissioner, Malakand Division (respondent No.7) by the respondents, which was also dismissed.
5.A revision petition was filed by respondents before the learned Senior Member, Board of Revenue, Khyber Pakhtunkhwa against the impugned judgment of learned Additional Commissioner dated 23.03.2013, which was accepted and the impugned judgment dated 28.11.2013 was rendered, hence the instant petition.
6.Learned counsel for petitioner contended that the impugned judgment is against law and without jurisdiction as the revenue officer could not exercise its power with regard to the land under reference on the ground that the Land Revenue Act, could not be applied to such land, which has been excluded from the operation of the West Pakistan Land Revenue Act, 1967, in term of section 3 of the West Pakistan Land Revenue Act, 1967.
7.On the other hand, learned counsel for the respondents argued that the West Pakistan Land Revenue Act, 1967 has been extended to Provincially Administered Tribal Area (PATA) by the Governor of the Province and the impugned judgment has been rendered by a competent Authority in this regard, while the concerned Revenue Officer could exercise its jurisdiction conferred upon him, by virtue of Section 117 of the West Pakistan Land Revenue Act, 1967, in order to demarcate any land.
8.I have heard arguments of learned counsel for the parties as well as the learned AAG on behalf of official respondents in light of law and facts on record.
9.The contentious issue and legal proposition involved in the matter is that as to whether a Revenue Officer can demarcate a land which is not assessed to land revenue. In order to properly address the legal proposition agitated by learned counsel for the parties, well formulated herein above, it would not be out of context to reproduce, at this juncture, the constitutional prohibition, placed under Article 247 of the Constitution of the Islamic Republic of Pakistan, 1973, (The Constitution of Pakistan, 1973), which read as:--
247. Administration of Tribal Areas.--- (1)Subject to the Constitution, the executive authority of the Federation shall extend to the Federally Administered Tribal Areas, and the executive authority of a Province shall extend to the Provincially Administered Tribal Areas therein.
(2) The President may, from time to time, give such directions to the Governor of a Province relating to the whole or any part of a Tribal Area within the province as he may deem necessary, and the Governor shall, in the exercise of his functions under this Article, comply with such directions.
10.In pursuance of the mandate, envisaged under Article 247 of the Constitution of Pakistan, 1973, the Governor of Khyber Pakhtunkhwa vide Notification dated 17.04.1979 with prior approval of the President of Pakistan had applied and extended the provisions of the West Pakistan Land Revenue Act, 1967 to PATA. The West Pakistan Land Revenue Act, 1967 has been enacted and promulgated for the purposes well mentioned in the preamble which read as:-- Preamble.- Whereas it is expedient to consolidate and amend the law relating to the making and maintenance of records-of-rights, the assessment and collection of land-revenue, the appointment and functions of Revenue Officers and other matters connected with the Land- Revenue Administration in the Province of West Pakistan, or incidental thereto".
11.The purpose of the West Pakistan Land Revenue Act, 1967 is two folds, firstly, to make and maintain record of rights of lands and secondly, to do assessment and collect land revenue and to appoint various Revenue Officers for implementation of the Act, with conferment of respective powers upon them and also all incidental matters thereto.
12.The provisions contained in Section 117 of the West Pakistan Land Revenue Act, 1967 expressly, confer power to the concern Revenue Officer, defined under section 117 of the same Act to define boundaries, which reads as:-- "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 subsection (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".
13. By virtue of the power conferred by Section 117 of the West Pakistan Land Revenue Act, 1967, a Revenue Officer may define the limits of any estate holding field and may also erect marks or referred the same already made.
14. In view of section 2 of the West Pakistan Land Revenue Act, 1967, the Government may by notification, exempt any area from the operation of the West Pakistan Land Revenue Act, or any specified provision thereof and as such, the settlement operation is not given effect, despite the fact, that the West Pakistan Land Revenue Act is enforced in District Dir, meaning thereby that only settlement operation with regard to lands, owned by land owners are not yet given effect to which is suspended, however, the settlement of lands owned by the State had already been completed.
15.The contention of the learned counsel that as the settlement operation has not been carried out in District Dir and no land is assessed to Land Revenue, forming part of District Dir is misconceived.
16. The provisions contained in Section 3 of the West Pakistan Land Revenue Act, 1967 only exclude land from the operation of the Act, which is occupied as the site of a Town or Village and is not assessed to land revenue, while all other estates, holding and, field are not excluded therefrom the operation of the West Pakistan Land Revenue Act, 1967, however, some of the provisions of the West Pakistan Land Revenue Act, 1967, keeping in view the peculiar circumstances of the area concerned, in regard to settlement operation and making record of rights of private lands are suspended for the time being.
Section 3 of the West Pakistan Land Revenue Act, 1967, if reproduce would be as:--
3. Exclusion of certain land from operation of this Act.---(1) Except so far as may be necessary for the record, recovery and administration of village-cess, or for purposes of survey, nothing in this Act applies to land which is occupied as the site of a town or village, and is not assessed to land- revenue.
17. As keeping in view the definition of estate and holding as defined under Section 4 (9) and (10) of the West Pakistan Land Revenue Act, 1967, wherein, the area under consideration, no separate record had prepared in regard to lands owned by Public at large, even then, a Revenue Officer, may exercise its power envisaged under Section 117 of the West Pakistan Land Revenue Act, 1967 in order to demarcate a field, although the field is not defined in the ibid Act, but shall be construed any land not falling within the definition of Estate or holding.
As discussed hereinabove, neither the provisions contained in Section 3 of the West Pakistan Land Revenue Act, 1967 exclude the operation of Land Revenue Act, particularly the provisions of section 117 of the ibid Act nor any provisions itself embodied in section 117 of the West Pakistan Land Revenue Act, to exclude any field within the concerned area, falling within the boundaries of PATA from the operation of Land Revenue Act, in regard to demarcation or partition as the case may be.
18. For the reasons mentioned hereinabove, this constitution petition carries no merit, which is dismissed accordingly. However, it would be appropriate to direct the Government in view of the worst law and order situation, in general and particularly in PATA that those provisions of Land Revenue Act, which empower the Board of Revenue and all respective Revenue Officials to initiate settlement operation shall be enforced forthwith, in order to minimize the agonies of land owners, and also to maintain the record of lands for any other purpose, including land revenue. This judgment shall be transmitted to the Chief Secretary, Government of Khyber Pakhtunkhwa and Senior Member, Board of Revenue, Khyber Pakhtunkhwa, Peshawar to make timely arrangement for the settlement of land in those areas/ District including in PATA, where the settlement operation is not initiated.
19.It would be appreciated, if the same is initiated, within a period of one year positively, while it is the duty and responsibility of the Government to implement and enforce the law or certain provisions of a law, which is suspended without any plausible explanation and reasons.