This writ petition calls into question order dated 03.06.2015 passed by the Member Judicial-VI, Board of Revenue Punjab Lahore whereby the revision filed by the petitioners was dismissed.
2. The petitioners are aggrieved by the construction of a school by Punjab Danish School and Centers of Excellence. Authority (the Authority) on the land which is allegedly Shamlat Deh. The respondents are inhabitants of the same area who have also filed Writ Petition No. 14871 of 2015 and Writ Petition No. 7534 of 2015 for recovery of possession of an area of 211 Kanal 13 Marla which is alleged to be under the illegal possession of the petitioners. All these petitions shall be decided through this order .
3. Learned counsel submits that the Assistant Commissioner , Mandi Bahauddin on the receipt of an application signed by an unknown person transferred 851 Kanal 15 Marla of Shamlat Deh land in favour of the Authority and Mutation No. 4791 was accordingly sanctioned on 05.05.2014 under the provisions of the Land Revenue Act, 1967 (the Act). The petitioners called into question the sanctioning of the mutation by filing an appeal before the Assistant Commissioner who dismissed the same on 18.03.2015. The revision filed before the Additional Commission (Revenue & Consolidation), Gujranwala was dismissed on 06.03.2015. This resulted into filing of a revision (ROR No. 700 of 2015) before the Board of Revenue which was also dismissed through the impugned order passed on 03.06.2015.
4. Learned counsel submits that the land in question formed part of Shamlat Deh which vests in the collective body of the landowners of the village and as such the Assistant Commissioner had no power to transfer the same in favour of the Authority . It is also the case of the petitioners that the land in question was transferred to the Authority not for the purposes of construction of a school but to generate income by giving it on lease to private persons.
5. The learned Assistant Advocate General as well as learned counsel for the private respondents have controverted the stance of the petitioners. It is stated that as per Wajib-ul-Arz for the year 2015 land measuring 851 Kanal 15 Marla was designated as Charagah which was a common land. It is furthermore submitted that more than 51% of the land owners of the area showed their preference before the revenue authorities for constructions of the Danish School by the Authority . Accordi ngly, land measuring 640 Kanal 2 Marla was mutated in favour of the Authority whereas the rest of the land 221 Kanal 13 Marlas of Charagah is still under the illegal occupation of the petitioners who are encroachers. Learned counsel for the Authority submits that as per the minutes of the 32nd meeting of the Authority held on 16.09.2020, it is agreed that a Danish School shall be constructed on the land in question forms part of Charagah.
6. The basic issue involved in this writ petition is whether the land in question transferred through Mutation No. 4791 dated 05.05.2014 is Shamalat Deh or whether it was reserved for Charagah through the W ajib-ul-Arz.
7. It is apparent from the record that majority of the inhabitants of the area appen ded their signatures as well as thumb impression at the time of sanctioning of the mutation in question. This fact is furthermore confirmed by the petitioners of Writ Petition No. 14871 of 2015 and Writ Petition No. 7534 of 2015 who have shown their preference for construction of Danish School on the land in question and have in fact stated that the petitioners are in illegal occupation of balance land of Charagah. Out of the entire body of land owners (640) only 15 persons including the petitioners filed the appeal against the sanctioning of the mutation. Furthermore, all the forums below also concluded that the petitioners were illegal encrcachers on the land designated as Charagah.
8. The forums below also arrived at the conclusion that the land in question formed part of Charagah which is meant for the common welfare of the inhabitants of the village and as per Section 175 of the Act the same cannot be occupied by any particular person. This fact is also confirmed by Wajib-ul-Arz relied upon by the respondents.
The relevant portion of the W ajib-ul-Arz reads as under: {{URDU T ABLE}} The copy of Register Haqdran Zamin for the year 2007-2008 also reflects the area in question as Charagah as also the Missal-iHaqiyyat.
Wajib-ul-Arz clearly reflects the custom of the area regarding the land in question being used for Charagah.
9. The official as well as the private respondents placed sole reliance on Wajib-ul-Arz to negate the claim of the petitioners. It is, therefore, necessary to look at the legal sanctity of the Wajib-ul- Arz. The Wajib-ul-arz or "village administration-paper" is a statement of customs respecting rights and liabilities in an estate. It was given statutory recognition by clause (b) of sub-section (2) of Section 31 of the Punjab Land Reven ue Act, 1887 which made it part of the Record-of-Rights. This provision Section 31 (2) (b) reads-as under: Record-of-rights and documents included therein:-- Save as otherwise provided by this Chapter , there shall be record-of-rights for each estate.
The record-of-rights for an estate shall include the following documents, namely:
(a) .............................................................................................
(b) a statement of customs respecting rights and liabilities in the estate
10. The official instructions contained in Paragraph 295 of the Punjab Settlement Manual described Wajib-ul-Arz in the following terms: "it (Wajib-ul-arz) should be a record of existing customs regarding rights and liabilities in the estates. It should not be used for the creation of new rights or liabilities, or for what may be called village legislation."
11. Appendix VIII-E of the Punjab Settlement Manual furthermore contains the rules on preparation of W ajib-ul-Arz.
12. The Punjab Land Revenue Act, 1887 by virtue of Section 184(1)(2) read with Part-II of the Schedule of the Act stood repealed. However , sub-section (3)(a) of Section 184 of the Act saved the transactions recorded thereunder .
This provision reads as under:
3. Notwithstanding the repeal of the enactments mentioned in sub-section (2):
(a) all rules, appointments and transfers made, notification and proclamations issued, authorities and powers conferred, farms and leases granted, record-of-rights and other record framed, revised or confirmed, rights acquired, liabilities incurred', times and placed appointed, and other things done, under any such enactment shall, if not inconsistent with the provisions of this Act, be continued and, so far as may be, be deemed to have been respectively made issued, conferred granted incurred, appointed and done under this Act; (Emphasis supplied)
13. Section 39(2)(b) of the Act retained W ajib-ul-Arz as part of the record of rights. This provision reads as under:
39. Records-of-rights and documents included therein.--
(1) Save as otherwise provided by this Chapter there shall be a record-of-rights for each estate.
(2) The record-of-rights for an estate shall include the following documents, namely:-
(a) .......................................................................
(b) a statement of customs respecting rights and liabilities in the estate Wajib-ul-Arz forms part of record of rights by the force of Section 184(3) (a) read with Section 39(2)(b) of the Act.
14. Entries in a Wajib-ul-Arz in regard to questions of custom are presumptive evidence of existence of the rules of custom or village usages embodied there in to which a presumption of correctness is attached under Section 44 of the Punjab Land Revenue Act, 1887 and also under Section 52 of the Act. The onus is on the party who contends to the contrary in regard to the custom or village usage mentioned in the W ajib-ul-Arz to establish his case.
15. In the present case, the petitioners did not challenge the entries of the Wajib-ul-Arz before any of the forums below . Even the grounds of this writ petition do not assail the custom mentioned in the Wajib-ul-Arz regarding the status of Charagah. Learned counsel for the petitioner placed reliance on judgment reported as Mian Ali Nawaz, etc. v. Khalid Hussain, etc., 2009 MLD 797 which is a judgment rendered by the Member (Consolidation) Board of Revenue, Punjab, Lahore. This judgment correctly enunciates the legal status of the Wajib-ul-Arz by holding as under: The first noteworthy point is that the statu s of Wajib-ul-Arz prepared under Section 39 of Land Revenue Act, 1967 is that of customary law and it provides a legal basis for determination of Shamlat Deh and it is not necessary that it should be incorporated in each successiv e Jamanbandi. Rights of landowners pertaining to distribution of Shamlat Deh are determined on the basis of Wajib-ul-Arz which takes precedence over entries in successive Jamanbandis including Jamanbandi immediately preceding the consolidation.
16. The Wajib-ul-Arz in question carved out an area of 851 Kanal 15 Marla out of the Shamlat Deh for Charagah which was a common land over. The petitioners never disputed the entries of the Wajib-ul-Arz before any forum.
The petitioners, therefore, have no right to occupy the same. The majority of the landowners have given their consent for the construction of the Danish School which would operate for the welfare of the children of the area.
17. In the circumstances, the petitioners have failed to make out any case for interference in the order (impugned herein) passed by the Member Judicial-VII, Board of Revenue Punjab, Lahore. This writ petition being devoid of any merit is accordingly dismissed.
Necessary orders have already been passed by the forums below holding the petitioners to be encroachers on the balance Charagah land. The official respondents shall, therefore, take necessary steps for retrieving the balance land of Charagah from the petitioners.