' The matter has come up in suo motu Revision under section 164, Land Revenue Act, 1967 on reference from the Deputy Commissioner, Navabshah (Mr. Maqsood Ahmed Shaikh) vide his Letter No, HVC/ 115 of 1972 dated 23-1-1973.
2. The case papers were examined. It appears that in about 1962 M/s. Habib Sugar Mills Ltd., proposed to set up a sugar mill in Nawabshan District and they, therefore, moved the Industries Department Government of West pAKISTAN to acquire proposed land for them. On reference, the Additional Commissioner, Khairpur issued Notification on 26-2-1962 under section 4 of tne Land Acquisition Act, 1894 indicating Block Nos. 120/1 to 4 of Den 86 Nusrat Taluka Nawab.Hah.
Agreement under section 41 of the Land Revenue Act was signed on 3-5-1962 and this Agreement included Block Nos. 120/1 to 4.
3. It so happened that some property notified for acquisition under section 4 of the Land Acquisition Act, 1894 was either evacuee property or Government property or property privately purchased by the party (vide para. 2 of the Award No, 5 of Land Acquisition Officer passed on 6-10-1962) In the result, by Corrigendum No, S-6-Rev-61, dated 30-8-1962, Block Nos. 120/1 to 4 etc. Were deleted by the Additional Commissioner, Khairpur under intimation to the Land Acquisition Collector, Department of Industries with reference to his Memo. No, LAO/IND/87/62, dated 25-4-19o2. This appears to have been done at his instance as is evident from the Award No, 5/1962 passed by him in this respect under section 11 of the Land Acquisition Act, 1984.
4. Notification under section 6 of the Land Acquisition Act, 1894 was issued on 6-10-1962, This Notification does not contain Block numbers, Member, Board of Revenue) already deleted vide, corrigendum dated 30-8-1962, including Block Nos. 120/1 to 4.
5. In these circumstances Block Nos. 120/1 to 4 stood withdrawn from Land Acquisition proceedings initiated by Land Acquisittort Collector under the provisions of Land Acquisition Act, 1894.
Conveyance deed between the Government and the party was executed on 15-7-1966 and this conveyance deed does not include Block Nos. 120/1 to 4.
6. In the meantime the party applied for permission to mortgage the acquired property and this permission, which was granted vide letter of Land Acquisition Collector dated 27-6-1966, does not show Block Nos. 120/1 to 4.
7. It appeared that while the acquisition proceedings were in progress M/s. Habib Sugar Mills Ltd., took over possession of Block Nos. 120/1 to 4 at their own and started construction over portion of it.
This is proved by the subsequent lengthy and meticulous correspondence of the party pressing for sale of Block Nos. 120/1 to 4 and handing over its possession to them officially.
8. In July 1967 during Jamabandi of Taluka Nawabsbah, it was reported to the Collector that Block Nos. 120/1 to 4 were Government property and that it had been encroached upon by M/s. Habib Sugar Mills Ltd., unanthorisedly and that the party was, therefore, liable to penal action under the provisions of Sind Land Revenue Code, 1879. The D-puty Collectot Nawabshah who was the Collector for purpose of Jamabandi of Taluka, imposed fine of Rs, 58,052.92 for the years 1963-64 to 1966-67, M s. Habib Sugar Mills Ltd. Went in appeal against this imposition of fine before Deputy Commissioner, Nawabshah who referred the matter to the Additional Commissioner, Khairpur for decision. The Additional Commissioner, Khairpur returned the case to the Deputy Commissioner, Nawabshah for decision vide his Letter No, 0-1-1-6-10,66, dated 13-8-1968.
9. Again during the Jamabandi of 1969-70 the Deputy Commissioner, Nawabshah (Mr. M. M.
Usmani), as Collector, imposed remokal fine of Rs, 24,99.70 for thc years 1967-68 to 1969-70 in respect of unauthorised encroachment by the M/s Habib Sugar Mills Ltd., over Block Nos. 120/1 to 4 which was determined as Government property not yet legally transferred and banded over to Mis Habib Sugar Mlls Ltd., M/s. Habib Sugar Mills Ltd. Moved the Deputy Commissioner, Nawabshah (Mr. M. M. Usmani) to reconsider the matter in exercise of his powers of review.
10. The Deputy Commissioner, Nawabshah (Mr. M. M. Usmani) heard both the above appeals and review matters on judicial side. He remitted the fine imposed by Deputy Collector, Nawabshah, in appeal on 14-7-1970. He also remitted the other fine imposed by him, in review on 20-7-1970, thus both the above fines stood remitted. Both these orders of the Deputy Commissioner, Nawabshah are under examination/revision herein.
11. Prior to this, the Deputy Commissioner, Nawabshah (Mr. F. M. Malik) had also allowed conversion inter alia of 2 acres from Block No,- 120/1 and one Acre from Block No, 120/2 vide his Order No, S. 0/2420 dated 4-7-1964. This order of conversion is also subject to examination! Revision herein.
12. Issues framed in this respect are as follows :-
(i) Whether Block Nos. 120/1 to 4 was a Government property. If yes, what is the effect of this in so far as.
(a) The land acquisition proceedings.
(b) Imposition of remokal fine are concerned ?
(ii) Whether Block Nos. 120/1 to 4 was acquired under the Land Acquisition Act, 1894 or otherwise by M/s. Habib Sugar Mills Ltd., and its possession duly handed over to them through Government or otherwise.
(iii) Whether the order dated 14-7-1970 passed by the Deputy Commissioner, Nawabshah (Mr. M. M.
Usmani) in appeal under section 161, West Pakistan Land Revenue Act, 1967 remitting remokal fine of Rs, 58,052.92 for the years 1963-64 to 1966-67 is maintainable.
(iv) Whether the order of the Deputy Commissioner, Nawabshah (Mr. M. M. Usmani) dated 20-7- 1970 remitting in review under section 163 of West akistan Land Revenue Act, 1967 remokal fine of Rs, 24,599.70 for the years 1967-68 to 1969-70 is maintainable.
(v) Whether the order dated 4-7-1964 passed by the Deputy Commissioner, Nawabshah (Mr. F. I.
Malik) granting the permission for conversion of Blocks No, 120/1 (2 acres) and No, 120/2 (one acre) under section 65 of Land Revenue Code, 1879 is in accordance with the provisions of Law.
(vi) Whether remokal action can be taken for Block Nos. 120/1 to 4 for the years 1970-71 onwards under the provisions of Colonization of Government Lands (Punjab) Act, 1912 as they are stated to be still in unauthorised possession of M/s. Habib Sugar Mills Ltd.
(vii) Can the matter be referred for arbitration under the relevant clause of the agreement dated 3-5-1962, executed under section 41, Land Acquisition Act ?
(viii) Whether the Board of Revenue has powers or jurisdiction to suo motu revise the orders of Deputy Commissioner, Nawabshah passed on 4-7-1964, 14-7-1970 and 20-7-1970 referred to above.
13. Heard Mr. M. J. Choudhry, Bar-at-Law counsel for M/s. Habib Sugar Mills Ltd. Mr. Choudhry also filed written arguments in this respect which are on record.
14. My findings in respect of the above issues are as follows :- Issue No, (i) : The Collector has to determine the proprietary rights in the land proposed for acquisition. It was found that Block Nos. 120/1 to 4 was Government property. No counter-claim was filed in this respect by any "person interested". As such Block Nos. 120/1 to 4 being Government property could not be acquired. The Act does not contemplate acquisition of any interest belonging to Government. Withdrawal of Block Nos. 120/1 to 4 from acquisition proceedings was proper. There is no statutory .Bar to exclude Government land from preliminary notification under section 4 of the Act and this course has correctly been adopted.
' The declaration under section 6 of the Land Acquisition Act does not mention Block Nos. 120/1 to 4 as such the status of the property continued to be Government property. In the result, imposition of remokal fine for any unauthorised encroachment over Government property was in conformity with the provisions of Sind Land Revenue Code.
Issue No, (ii)
' Block Nos. 120/1 to 4 was not acquired under the provisions of Land Acquisition Act as the declaration under section 6 of the Act does not make a mention of it. The Block being Government property was not also sold by any body else to M/s. Habib Sugar Mills Ltd., to afford them even a lean support. Possession of this Block appears to have been taken by the party at their own presumably after issue of notification under section 4 of Land Acquisition Act which merely allows the party, the right of entry for the purpose of carrying preliminary investigation with a view to finding out after necessary survey whether the land was adapted for the purpose for which it was sought to be acquired. Even if its possession had been given to them by any Revenue Officer at any stage, it will not advance the case of the party because such handing over of possession is neither supported by the declaration under section 6 of the Land Acquisition Act B or by any grant order passed by competent authority. The Collector could not acquire or give possession of any land beyond the boundaries given in the declaration under section 6 of the Act. The party was well aware of this situation with the result that they have been meticulously pursuing the matter of sale and possession of Block Nos. 120/1 to 4 to them.
Issue No, (iii)
The order dated 14-7-1970 passed by the Deputy Commissioner, Nawabshah in appeal remitting the remokal fine is not maintainable.
Firstly, he was not competent to hear the matter in appeal as the initial order imposing remokal fine was passed by the Deputy Collector of Nawabshah in the capacity of Collector. The Deputy Commissioner also exercised the powers of the Collector. It was only the Commissioner. Who could hear the matter in appeal and determine it.
' Secondly, Block Nos. 120/1 to 4 was determined to be Government property and was proved to be in unauthorised possession and use of M/s. Habib Sugar Mills Ltd. They were, therefore, liable for penal action under the provisions of Sind Land Revenue Code. Acquisition beyond declaration under section 6 of the Land Acquisition Act is not permissible and the Collector has no competence to acquire or give possession of land beyond the boundaries given in the declaration. Sub-para.
(2) of para. 18 of Standing Order 12 has been obviously misconstrued.In this case, some land notified under section 4, was found to be either Government property or evacuee property or privately purchased property, and acquisition of such Government property etc. Was considered to be not warranted. It was, therefore, decided not to acquire such land although already notified under section 4 of the Act and this fact was reported to the Commissioner, Khairpur, for issue of withdrawal. The Additional Commissioner, Khairpur therefore, issued withdrawal notification dated 30-8-1962 concerning Block Nos. 120/1 to 4, 139/1,2. 140 and 141/1,2, 3,4 of Deli 86 Nusrat. Taking over possession is not permissible before the issue of declaration under section 6 of the Act and this declaration was issued on 22-6-1962. This declaration does not indicate Block Nos. 120/1 to 4. It is therefore, evident that possession of Block Nos. 120/1 to 4 could not legally be handed over to the opponent/Mills and that it is, therefore, unauthorised trespass. The plea of the opponent that possession in this case had been taken and, therefore, withdrawal cannot be sanctioned is of no avail to them as withdrawal has already been adjudged as proper and permissible.
The Deputy Commissioner, Nawabshah was, therefore, not justified to accept the appeal and remit the fine.
Issue No (iv)
' The order of the Deputy Commissioner, Nawabshah dated 20-7-1970 remitting in review, remokal fine is also not maintainable as the status of the property was determined to be Government property and it was proved that the property was in the unauthorised possession and use of M/s. Habib Sugar Mills Ltd. And as such they were liable for penal action under the provisions of Sind Land Revenue Code. There was no justification at all for remitting the fine in review.
Issue No, (v)
This order of the Deputy Commissioner, Nawabshah dated 4-7-1964 under section 65 of Sind Land Revenue Code granting permission of conversion in respect of Blocks No, 120/1 (2 acres) and No, 120/2 (one acre) under section 65, Land Revenue Code is not in accordance with the provision of law. Action under section 65 of Land Revenue Code is to be taken G solely in respect of private property. Invoking provision of section 64 in respect of Government property is not legally correct.
The working of section 65 of Land Revenue Code is very clear in this respect. The order of the Deputy Commissioner, Nawabshah dated 4-7-1964 is, therefore, not maintainable in so far as Block Nos. 120/1 and 2 is concerned.
Issue No, (vi)
' As Block Nos. 120/1 to 4 has been determined to be Government property and it has been found that it is continuously in unauthorised possession and use of M/s. Habib Sugar Mills Ltd., remokal action can be taken for the years 1970-71 onwards also under the provisions of Colonization of Government Lands (Punjab) Act, 1912.
Issue No, (vii)
' The Land Acquisition proceedings have already been closed long back. These proceedings did not relate to Block Nos. 120/1 to 4 whicn were already withdrawn alongwith some other land from the operation of Notification under section 4 of the Act. Block Nos. 120/1 to 4 has already been determined as Government property. It is open for the Mills to pursue the matter and purchase this land from Government. There is absolutely no dispute whatsoever between the executants of the Agreement dated 3-5-1962. The prayer of the Mills for referring the matter for arbitration is, therefore, without basis.
Issue No, (viii)
' The Board of Revenue under the provisions of section 164 (1), West Pakistan Land Revenue Act, 1967 can at any time on its own motion call for the record of any case pending before or disposed of by, any Revenue Officer subordinate to it, for the purpose of verifying, if jurisdiction has been exercised correctly, The present action is, therefore legally correct' and maintainable and the Board of Revenue is empowered under section 164 (4) to pass such orders as it thinks fit.
15. For the reasons discussed above, I am of the opinion that the orders passed by the Deputy Commissioner, Nqwabshah on 4-7-1974, 14-7-1970 and 20-7-1970 referred to above, are not maintainable in respect of Block Nos. 120/1 to 4. I, therefore, vacate them. 1 also direct that remokal action in respect of Block Nos. 120/1 to 4 for the years 1970-71 onwards under the provisions of Colonization of Government Land (Punjab) Act, 1912 (vide sections 33 and 34) be taken against unauthorised encroacher M/s. Habib Sugar Mills Ltd. The prayer of the Mills for arbitration is also rejected. ....Ow ...