CH. MUHAMMAD MASOOD JAHANGIR, J.---The brief facts giving rise to the litigation in hand were that respondent No.5 and the petitioners were residents of same Revenue Estate. The former preferred an application for demarcation of public thoroughfare comprising Khasra No.405 of the said village, which was carried out and ultimately report was formulated finding the petitioners unauthorized possessors of the public thoroughfare measuring 10 Marlas and respondent No.5 an encroacher over 04 Marlas . Being dejected, petitioners preferred Appeal before the Collector-respondent No.3, whereas respondent No.5 also moved an application for removal of unauthorized constructions of the petitioners. The Authority allowed the Appeal and dismissed Petition of respondent No.5 vide order of 28th October , 2010 on the sole ground that jurisdiction of the Revenue Authorities was ousted under sections 3 and 117 of the West Pakistan Land Revenue Act, 1967 and the matter warranted its adjudication by Civil Court only, but this order could not hold the field when not only Revision Petition preferred by respondent No.5 was allowed by the Additional Commissioner / respondent No.2 rather ROR preferred by the petitioners was also declined by learned Member , Board of Revenue and to call in question the Demarcation Report as well as unanimous orders of respondents Nos.1 and 2, this Constitutional Petition was filed.
2. It is emphasized by learned counsel for the petitioners that admittedly at spot residential building having been built since long, the matter did not fall within the ambit of Revenue Authorities and any such exercise falls outside their jurisdiction as per sections 3 and 117 of the West Pakistan Land Revenue Act, 1967. He further added that respondent No.5 initiated parallel civil litigation with regard to the same dispute having already been decided in favour of the petitioners and thereafter the Revenue Hierarchy was not within its jurisdiction to reopen the same chapter after its decision by the Court of ultimate jurisdiction. It was also stressed on his part that the Collector/respondent No.3 himself after visiting the spot rendered specific opinion that disputed Khasra number was situated in Abadi and the Revenue Officer was not competent to carry out its demarcation, but both of his superior Authorities without considering said aspect of the matter passed the impugned orders, which being erroneous and illegal cannot be sustained. He further pleaded that the entire demarcation proceedings carried out by the Revenue Authorities were in sheer violation of law and rules on the subject.
In contra learned counsel for respondent No.5 as well as learned Law Officer appearing on behalf of respondents Nos.1 to 4 submitted that it was nowhere denied before any forum by the petitioners that they had not encroached upon land of public thoroughfare and the Revenue Hierarchy under the mandate of section 117 of the Act ibid read with Rule 67A of the Punjab Land Revenue Rules, 1968 was within the jurisdiction to define the limits of any portion of a Revenue Estate. It was also argue d that demarcation proceedings were carried out in conformity to the requirement of relevant law/rules and all the concerned including petitioners joined the same. It was also their stance that an illegal and unauthorized construction on public thoroughfare could not be declared as property meant for site of a village or town and the Revenue Authorities were very much competent to pass the orders for its removal.
3. Arguments heard and record perused.
4. To deal with the controversy in hand, it would be advantageous to reproduce section 117 of the Act ibid, which reads as under:- Section 1 17: 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 .
It left no doubt that a Revenue Officer is empowered to define the limits of any estate, or of any holding, field or other portion of the estate on an A application of any person and as a result of such proceedings, a person found to be in wrongful possession of some land can be evicted on a subsequent application under Rule 67B of the Rules ibid. I have gone through the contents of Appeal as well as the Petition preferred by the petitioners before the Collector and this Court respectively , wherein petitioners had never mentioned that either they were co-sharers in the subject Khasra or they had not raised any construction over it. Even during course of submissions learned counsel for the petitioners did not emphasize that his clients had not erected any building over the land of common use. In support of such situation, section 175 of the Act being further relevant is reproduced below:- Section 175 : Prevention of encroachment upon common lands.
(1) Where land which has been reserved for the common purposes of the persons residing in the estate in which such land is situate has been encroached upon by any person, and the land has been shown encroachment as so reserved, a Revenue Officer may, on the application of a land owner in the estate, and after giving an opportunity to the person alleged to have encroached upon it to appear before him and show cause against the proposed action- a) eject from the land the person who has encroached thereupon; and b) by order proclaimed in the manner provided in section 26, forbid repetition of the encroachment. which has provided procedure for eviction of an encroacher over the land reserved for common purposes irrespective of the fact that a building had been erected thereupon. As such the view of the learned Collector that Revenue Hierarchy had no jurisdiction to exercise its powers for removal of encroachment was rightly struck down by his superiors / respondents Nos.1 and 2.
The study of demarcation report unfolded that the Revenue Officer in presence of parties as well as other notables started the proceeding to define the limits of the impugned Khasra, when Zafar Iqbal, petitioner No.3 being sure that their encroachment would be highligh ted slipped away from the scene, who till today did not file an affidavit to rebut this fact disclosed by the Revenue Officer in his report while discharging his official duty. The argument of learned counsel for the petitioners that in other round of litigation initiated by respondent No.5 before the Civil Court, he failed and thereafter had no locus standi to reopen the same issue before the Revenue Hierarchy was not well founded. The issue with regard to determination or demarcation of the limits of portion of estate and removal of encroachment of land used for common purposes vested with the Revenue Authorities and any other move before some different forum could not be made basis to put a restraint on its jurisdiction. The Revenue Officer after keeping in mind all the measures provided by Rule 67A of the Rules ibid performed the demarcation proceedings, who not only declared petitioners in wrongful possession rather respondent No.5, who was the suitor was also found to be encroacher of the common passage, as such he was fair enough and committed nothing wrong. The petitioners having no right or interest with the land of public thoroughfa re cannot be allowed to remain in its possession, which was meant for common use of public and they deserved to be dealt with iron hands. The learned counsel for petitioners could not point out any infirmity or perversity in the impugned orders, which are neither coram non-judice nor ultra vires . Hence this Writ Petition being devoid of any merit and force is dismissed with costs of 25,000/- .