Ch. Sultan Mahmood-J: This consolidated judgment shall dispose of the present along with connected writ petitions i.e. 15269 of 2014, 17284 of 2014, 819, 2531, 2532, 2533, 2535, 2536, 2537 & 2538 of 2015, 5095 of 2019, 12665 of 2018, 5738 of 2020, 2035 of 2022 and Crl.Orig.No.994-W of 2022 and as common questions of law and facts are involved in these cases.
2. Brief facts of the matters are that in the village Pirdhan Sharqi Tehsil Taunsa consists of land measuring 44765 Kanals out of which an area 23775 Kanals 13 Marla is Shamilat. The Shamilat had to be distributed among shareholders of Shamilat consisting of Ahmadani and Datani families and Malak Khareed Hasab Rasad Khewat. Consolidation proceedings started in the year 1977. The mode of partition and allotment of land was sanctioned by the Consolidation Officer on 15.04.1980, in tandem to the same consolidation schemes were finalized on 30.03.1984. A dispute inter se the parties started on the subject of mode partition should be Hasab Rasad Khewat and an order was passed by the District Collect to the effect of distribution as per Hasab Rasad Khewat. However, the matter was finally put to rest by the judgment of Member Board of Revenue dated 14.05.1992 and it was held that Shamilat has to be determined in accordance with the scheme confirmed on 30.03.1984, it was upheld by this Court in W.P. No. 2425/1995 vide judgment dated 07.05.1995.
Leaving the unnecessary details aside eventually Shamilat was distributed and appeals were filed against the same, which were dismissed on 29.11.2006, appeals were preferred and those were dismissed by the Executive Officer (Revenue) through order dated 13.02.2007. Revisions were preferred and those met the same fate through the impugned order dated 19.09.2014. Hence, these petitions.
3. Learned counsel for the petitioners have unanimously stated that they do not have any objection on the mode and scheme of the Consolidation Officer for division of Shamilat but they object to the distribution of Shamilat as it has been made in violation of the mode and scheme. They bought land in the village and became Malik Khareed but they have been ignored while passing the impugned order and it has been held that at the time of their initial purchase they did not buy the rights in the Shamilat Deh. Petitioners in W.P. No. 12665 claimed their share have been decreased whereas they have been allotted 99 Kanals of Shamilat; In W.P No.819 of 2015, it has been claimed that Shamilat land measuring 28 Kanals have been deducted but the mutations made in favour of petitioners and their predecessors are Bila Shamilat and were not accorded right in the Shamilat; In W.P. No. 2531/2015 has been claimed that their families are Kamil Malik since 1872-1873 but there is no entry in the record which reflects that they have been entered as right holders in the Shamilat Deh. In W.P. No. 2535/2015 the only grievance is that only 59 Kanals have been given out of Shamilat to petitioners. In Writ Petition No. 25337, it is claimed that no Shamilat has been allotted despite holding in the village but the record reveals that Mutation No. 1194 in favour of Raheem Baksh is Bila Hisa Shamilat.
4. The learned counsel for the respondent has also drawn my attention to different mutations which reflects Shamilat has been distributed in accordance with the law on the subject and the petitioners are either not shareholders of Shamilat or they have received as per their entitlement.
Further they were holdings land more than their entitlement. They have a vested interest in misusing and abusing judicial processes and proceedings to delay finalization of the consolidation scheme. It is these land holders who are agitating the matter from time to time before different fora.
5. A perusal of the record also indicates that the classification of land of the revenue estate under consolidation was carried out under the Consolidation of Holdings Ordinance 1960. The same was accepted by the advisory council on the classification of land. Consequently there was no ground or lawful basis to disturb distribution of land on the basis of categorization /classification; there is no dispute inter se the parties on the formula. The only contentious issue is that petitioners have been deprived of their respective holdings in Shamilat after confirmation of the Scheme of Consolidation. Through the instant petitions, concurrent findings recorded by the revenue hierarchies have been impugned. Further orders passed by the concerned revenue functionaries placed on record show that there was no serious objection regarding wrong / erroneous classification made at any stage. Therefore, the argument of the learned counsel for the petitioner is not substantiated by any material on record.
6. As far as the question of Shamilat Deh is concerned, the petitioners have not specified any right nor area nor have placed any document to in support of their allegation that Shamilat Deh has been wrongly allocated to the land holders who were not entitled to such allotment. Therefore, I do not find any substance in the argument that Shamilat Deh has wrongly been distributed.
Customary Law by Rattigan in its paragraph 224 holds: "As a general rule, only proprietors of the village(malikan e deh) as distinguished from proprietors of their own holding(malikan Makbuza Khud) are entitled to shamilat e deh."
This court consistently held that the rights of proprietors in Shamilat of a village are not a mere accessory to the land separately held by them and the onus lies on a purchaser of proprietary land to show that a sale to him included also a share in the Shamilat[1]. But this remained a general rule and exceptions were afforded as Privy Council while deciding an appeal arising from a village Harnuali of District Mianwali, brief facts were that Nur Muhammad sold his land measuring 207 kanals in 1851 to Parsa Ram, over three decades land was further transferred and eventually was transferred to Rupa Ram, meanwhile an area of Thal on which villagers had certain rights was made part of Shamilat of village and the remaining was retained by the state as Government Rakh(reserve) during settlement. Later on that Shamilat was to be partitioned amongst the proprietary body, the share of the Shamilat which on a proportionate basis would fall to the 207 Kanals of land was to be 3496 Kanals, at that point legal heirs of Nur Muhammad started a litigation and sought to make out that Nur Muhammad did not then part with his right to share in the shamilat. The claim failed on the ground that in 1851 village proprietors had no proprietary rights in the Shamilat and consequently at that date Nur Muhammad could neither sell nor reserve any such right[2]. So to say this right was recognized and was open to exception only when there was some demonstrable legal reason to do so. After independence first legislative intervention in this regard was made in Indian Punjab with promulgation of the East Punjab Land Alienation (Saving of Shamilat) Act, XIX of 1948. The Section 3 of this instrument was passed to the effect as noted by the High Court[3], that unless an intention to convey such share is admitted by the alienor before such Court or authority or can be inferred from his conduct or if the contract in writing is apparent on the face of it.
This legal position got statutory backing, even the general rule as noted above which was open to exceptions was solidified and exceptions were weeded out through legislative edict, with the promulgation of the Punjab Land Dispositions (Saving of Shamilat) Ordinance 1959, relevant is the Section 3 which reads as under: "3. Shamilat not included in disposition of land unless specifically mentioned as subject matter of the disposition.-- (1) Notwithstanding any law, usage or custom to the contrary, in any disposition of land, whether testamentary or otherwise, effected by the maker by means of a writing or orally and whether made before or after the commencement of this Ordinance, words or phrases of a general nature, purporting to convey rights or interests incidental, contingent, or collateral, to that land, shall not be so construed as to include therein the Shamilat or any portion thereof appurtenant to such land, unless such Shamilat or a portion thereof has been specifically mentioned as the subject matter of the disposition.
(2) This section shall not affect any decision of a competent court or authority given before the commencement of this Ordinance:-
(a) if it is not open to review, appeal or revision, or
(b) if it is so open, no such proceedings have been taken, and the decision has consequently become conclusive between the parties."
The purpose and effect of section 3 of the Ordinance I of 1959 was to avoid conveyance of Shamilat land, unless specifically provided for in the sale-deed. This was not the case here as seen above.
The Legislature was well aware of the nature of Shamilat land. It was held in common for the benefit of all shareholders and possession of one was on behalf of all others. Therefore, when the Legislature provided that with the sale of land holding share in Shamilat is not to be deemed to be conveyed, it was taken that the erstwhile landlord would still be a sharer in the Shamilat and he can sue for his share in the Shamilat. The purpose and effect of the Ordinance would be frustrated if a landlord who sells his land is deprived of his share in the Shamilat as well[4].
7. The Contention of a few petitioners is that they have rights since 1872 but onus to prove the same was on them but no such instrument has been placed on record[5]. Another argument raised is about possession but the Honourable Supreme Court while considering these contentions of possession held that adverse possession is not a ground in such cases[6] Although, this court has limited jurisdiction under Article 199 to adjudicate on the factual merits of the case in consolidation matters no reappraisal of factual controversies could be made and only legality of order is to be seen[7], but given the above legal position, the division of Shamilat so made only to those persons to whom land was transferred with share in Shamilat is apt and legal and is not open to exception.
It would be advantageous to mention that the provisions of Section 3 are subject to rights of the government as noted in the wajib ul arz or any rules[8] but in this case there are no such rights of the government as per the record before this Court.
8. The record reveals that about 98% of the holders have accepted the new consolidation scheme, which has duly been acted upon for all intents and purposes. There are objections on the deduction of the holdings. Petitioners represent a very small percentage of the land holders, as per the impugned order only 2% and their objections are on the factual side[9].
9. Learned Counsels for the petitioners have argued cases with great vehemence about the allocation of land. Throughout their arguments they attended to this ground and there was no dispute about classification of land but with respect to area of land. Superior Courts of this country have consistently held that writ jurisdiction is not the proper forum for agitating grievances against allocation of land in consolidation proceedings,[10] thus the ground so agitated fails being not tenable.
10. The record indicates that entitlement certificates have been issued and the entire record has been returned to the department. thus, the consolidation department has become functus officio.
There is neither lawful reason, nor justification to recommence the entire exercise, which has taken about 4 decades to conclude[11].
11. Finally the petitioners have come to this Court and have invoked its constitutional jurisdiction, which has very limited scope and no reappraisal of facts can be made. Even otherwise, as noted above, grievances regarding allocation of land in consolidation proceedings cannot ordinarily be agitated before this Court in its constitutional jurisdiction. No extraordinary circumstances have been demonstrated before this Court that may warrant interference by this Court. Therefore, I am not persuaded to hold that the petitioners are entitled, to the discretionary and equitable relief that they seek in this case in the facts and circumstances of this case. For reasons recorded above, I find that the order dated 14.09.2014 passed by respondent No.1 requires no interference by this Court and the relief prayed for by the petitioners cannot be granted.
12. All the petitions mentioned in paragraph No.1 of this judgment to the extent of consolidated proceedings are accordingly dismissed except writ petition No. 2536 of 2015 which is disposed of in terms that petitioner's actual claims holding in his own Khewat has been reduced and not from Khewat shamilat. Be that as it may, he can certainly avail a remedy as recognized by Courts[12] which certainly would be decided under general jurisdiction, if the land was reduced erroneously as contemplated in the case of Dildar Ahmad supra. No order as to costs.
1. (1923) 9 Ind Cas 84; (1921) 3 Lah LJ 569;
2. ILR (1937) Lah 662 Aya Ram and another Vs. Rup Chand and others [3]AIR 1953 PUNJAB 135 Bhim Singh Vs Changdi
4. Ghulam Hussain Vs. Allah Baksh 1991 SCMR 1386
5. Muhammda Vs. Muala Dad 1991 SCMR 1119
6. Mst Aftaba and another Vs. Raza Khan and another 1984 SCMR 906
7. Ghulam Rasool Vs. Member (Consolidation) (2004 SCMR 587)
8. Muhammad Asjad Abbasi Vs. Iqbal Muhammad Chauhan (2018 SCMR 2051)
9. Ahmad Din Vs. Member Consolidation PLD 2016 Lahore 306
10. Riaz v. Member, Board of Revenue, Punjab, Lahore (1997 SCMR 1611), Muzaffar Ali v.
Muhammad Shafi (PLD 1981 Supreme Court 94), Umar Din and others v. Member (Colonies), Board of Revenue and others (1984 CLC 17), Allah Rehman and others v. Amtul Qayyum and another (1989 SCMR 1817), Ghulam Qadir v. Member Board of Revenue, West Pakistan, Lahore and 4 others (1970 SCMR 292), Muhammad Hussain Munir and others v. Sikandar and others (PLD 1974 Supreme Court 139), Amir Din etc.v. Muhammad Malik etc. (1981 SCMR 834), Falak Sher v. Sharif and others (1989 SCMR 1096).
11. Khushi Muhammad v. The Board of Revenue, West Pakistan and 3 others (PLD 1973 Lahore 829), Muhammad Din and 3 others v. The State etc. (PLD 1982 Revenue 2), Mir Ali and 8 others v.
K.B. Dil Aram Khan (deceased) through Legal Heirs and others (1992 SCMR 1), Abdul Ghani v.
Abdul Farooq, etc. (1993 MLD 1643) and Allah Jawaya v. Muhammad Sharif and others (PLD 1987 Revenue 29).
12. 2023 SCMR 906 Dildar Ahmad Vs. Member