TAMEEZUDDIN KHERO, MEMBER (R&S).---- This is an Appeal under section 161 of Sindh Land Revenue Act, 1967, filed by Appellant before the Board of Revenue registrar on 22nd June, 2015.
2. The facts of the case as alleged by the appellant are that an area of 6-20 acres out of block No. 500 situated at Deh Jakhrao, Taluka Sanghar was a Nakabuli land which was available for disposal amongst the eligible/ landless Haries (peasants). The Appellant being an eligible person i.e. landless hari and resident of deh has applied for the same. He attended the open katchehry which was held in the year 2004. Block No.500/1,2 (6-20 acres) was shown in the schedule pertaining to Land Grant. The block No.500/1, 2 was allotted to the appellant for whom initial deposit was also made. Appellant and barrage authorities signed agreement on 14th July 2004 and allotment order was issued by barrage department on 17th July 2004. An entry in the revenue record of rights was also made vide No. 435 dated 20th August 2004.
Irrigation authorities sanctioned water for the above land also. The possession of the land was delivered by the barrage authorities to appellant who is in cultivating possession from the date of grant and land revenue is also being paid by him.
3. The respondent Dodo son of Rano after lapse of three years, alleged the appellant, filed time barred appeal against the grant order before defunct Executive District Office (Revenue) Sanghar which was subsequently transferred to defunct EDOR Mirpurkhas on the ground that the impugned order was passed by the EDOR Sanghar in capacity of DOR Sanghar . He further alleged that the respondent neither applied for grant of disputed land nor contested the katchehry and got no cause of action to prefer time barred appeal. He further maintained that he was more eligible to grant of the land. He has paid all the installments towards grant and EDOR Mirpurkhas had passed order against him without hearing him. He has prayed that the order of EDOR Mirpukhas dated 20th November 2007 may be set-aside and grant in his favor be restored.
4. The perusal of the order of learned EDOR Mirpurkhas in LG appeal No.306 of 2004 dated 20th November 2007 shows that appellant as well as respondent were present in person before him and both were heard at length. The present respondent has stated before EDOR that the possession of block No. 500/1, 2 (6-20 acres) was with him and his brother since long and their residential houses are also situated in that land. The respondent maintained that they were availing all basic facilities at the said land and they had also applied for grant of disputed land but it was granted to the present appellant. The present respondent further stated there that the allotee was an employee of Roads Department and was not eligible for grand of land on harap conditions so that grant might be cancelled.
He further stated that the present appellant got allotment on political/ social influence and the allotee was not residing in the deh Jakhrao but in the deh Togacho and was trying to eject them form disputed land and take forcible possession.
5. After filing of this appeal on 22nd June 2015, notices were issued by this court to respondent Dodo through Mukhtiarkar Sanghar on 22nd June, 6th August, 9th September , 29th December 2015, 27th April and 21st December 2016, 16th November 2017, 21st December 2017, 1st January 2018, 13th August 2018, 31st August 2018, 3rd January 2019, 17th January 2019, 30th January 2019, 1st March 2019 and for 10th,October 2019 (16 times). But, the perusal of case file shows that despite issuance of so many notices not a single notice was served by Mukhtiarkar Sanghar or if served, no intimation of service was communicated to this Court. This shows the intransigence on the part of Mukhtiarkars in Revenue Department. It is therefore recommended that the Senior Member , Board of Revenue Sindh kindly take notice of the state of affairs at Mukhtiarkar level and take necessary remedial measures.
6. This case came up for hearing today . The counsel of appellant Mr. Jessaram is present. He has argued on the point of maintainability of appeal especial ly in view of the time barredness of the appeal. He argued that the appeal is in time from the date of knowledge and that the delay is neither intentional nor deliberate and that the appellant will suffer irreparable loss and damage if the delay was not condoned. He furthe r prayed that application under section 5 of Limitation Act may be allowe d in the interest of justice. After careful consideration of the application, condonation was allowed. The counsel was then required to plead his case. He repeated the arguments raised in his written appeal. He cited some case law in his favour also. He relied on an order of Board of Revenue Sindh passed in case No.SROA-137 of 1987, passed by the then Senior Member , Board of Revenue Sindh learned Mr. Abdul Karim Lodhi who held that "I would not let the petitioner's second vocation of a Teacher come in his way (of grant of land). The appeal is accepted..." The learned counsel also placed his reliance on another citation vide 1986 MLD 11 (Board of Revenue Sindh), case No.SROA-178 of 1984-85 whereby the then learned Member , Board of Revenue, Mr. Ayaz Hussain Ansari had held, "state land could be disposed of in open Katchehryclaimant not contesting in such katchehry , would have no cause of action and no appeal could lie against non-grant of land in circumstances". He also relied on another order of Board of Revenue Sindh passed by Mr. Nusrat Hassan CSP, the learned Member , BoR, Sindh. He held, "cause of action-petitioner present at the time of auction of plot but did not participate in the auction-has no cause of action. The counsel for appellant has further placed reliance on an order passed by the learned Additional Commissioner , Mirpurkhas Mr. Allah Bachayo Mallah in Land Grant Appeal No. 56 of 1997 whereby it has been held, "I... have come to the conclusion that the appellant is a big zamindar (landowner)... did not participate in the katchehry ... has no cause of action to file... appeal... there is no embargo on grant of land to the low paid government employees..."
7. I have given full and careful considera tion to case in hand. The contention of the counsel for the appellant that the respondent did not attend open katchehry or did not contest for the disputed land is rebutted in the order of the lower court. He has further stated in para No. 5 of the grounds of his appeal that a low paid government servant is entitled to the grant of land as decided by the Board of Revenue Sindh cited above. I am afraid that I do not agree with the contention of the learned counsel as well as the decisions of BoR. The reason being that a harap grant under the land grant policy can only be made to a person who is a Hari by profession or has worked as a Hari for ten years and he has either to be a landle ss or small holding farmer . Under the land grant policy which is approved by the Government, there is no provision for allotment to a non-hari or a Gove rnment servant. And, since the Courts are bound to decide the matters within the four corners of law-as they are not law givers, so the decisions of BoR cannot be in violation of a written policy or a law. Besides, the decisions of only the superior judiciary (High Court in relevant province and Supreme Court in Pakistan) are binding on lower courts. Hence, no reliance can be placed on the decisions of the BOR as binding decisions. These decisions may however be used as guiding principles in Revenue Courts and of fices subordinate to BoR.
8. I therefore for the reasons given in paragraph 7 above, do not find the appellant eligible for grant of disputed land. The cancellation of grant order of the learned EDOR Mirpurkhas is therefore maintained. Let the District Revenue Authorities bring this land in disposal schedule and allot it in accordance with the land grant policy in vogue, as per law . The appeal is therefore disposed of in above terms.
9. Announced in open court. Given under my hand and seal of this court, this 5th day of November , 2019.