DECISIONAKHTAR SAID, MEMBER- The Colony Naib-Tehsildar, Bhakkar reported on 12.11.1981 that the area of the petitioners falls in the Municipal area of Bhakkar Town, and has been built upon, therefore it whould be included in Abadi-Deh of village Bhakkar Daggar Gharbi. His report was sent to the Settlement Officer, Bhakkar (the District being under Settlement at the time) who on 14.11.1981 ordered the inclusion of the petitioners' areas in Abadi-Deh.
2. The petitioner Hakim Abdur Rahim Khan went to the Commissioner in appeal, who remanded the case to the Collector, by his order dated 7.4.1982. Meanwhile Mst. Memona Begum also applied to the Collector against this inclusion, who referred the case to the Commissioner. The Commissioner remanded her case also to the Collector by his order dated 18.10.1984.
3. The Collector on 28.11.1984 upheld the decision of the S.O. Bhakkar of 14.11.1981.
4. The petitioners appealed to the Commissioner who on 14.,9.1985 remanded the case again to the Collector.
5. The Collector on 16.12.1985 decided that the entire ownership of Mst. Memona Begum consisting of 333 kanals 1 maria was in Municipal area and had been built upon: he upheld the decision of the Settlement Officer. Similarly, the Collector, held that the entire ownership of Hakim Abdur Rahim Khan in the village consisting of 325 kanals 16 marlas was correctly included in the Abadi Deh by the Settlement Officer.
6. Both the petitioners appealed to the Commissioner who on 20.9.J986 decided that, as regards the case of Mst. Memona Begum, the area under construction was 39 kanals 7 marlas, vacant plot 0-15 marlas, area under bricks 4 kanals 0 maria, area irrigated by tube well 24 kanals 0 maria, and barani area was 267 kanals 16 marlas. He also held that the entire area of Mst. Memona Begum was outside the municipal limits. He decided to include in Abadi-Deh only 44 kanals 2 marlas, and released the remainder.
7. As regards the case of Hakim Abdur Rahim Khan, the Commissioner decided that 74 kanals 3 marlas was vacant, 61 kanals 2 marlas was under construction, and decided that only 61 kanals 2 marlas should be included for the extension of Abadi-Deh.
8. This break-up of the areas of the two petitioners by the Commissioner in his decision was based on the report of the Extra Assistant Commissioner (Revenue) Bhakkar dated 30.5.1985. This report was asked for by the Commissioner in his order of 31.3.1985 during the course of pending proceedings, but while deciding those pending proceedings he had not mentioned or in any way referred to this report in his decision dated 14.9.1985.
9. It is important to mention that as a result of the inclusion of the petitioners' areas in Abadi-Deh, Mutation No.1789 was attested on 30..3.1982, which shows a change in the ownership, as well as cultivation column. In the ownership column "Abadi-Deh" has been entered in place of the petitioners, and under cultivation column the following new entry has been made ( )ARGUMENTS10.
These two cases have two aspects to them:
(A) Whether the inclusion of the areas of the petitioners was proper and inaccordance with the Law? And,
(B) Regardless of whether the inclusion of the areas was proper or bad in fact or law; what was the effect of the inclusion in Abadi-Deh on the subsisting rights of land-owners?
11. Since both the petitioners by the operation of Mutation No.1789 of 30.3.1982, have been deprived of their ownership, I asked their two counsel whether their grievance would not be remedied if their ownership was restored, regardless of whether the inclusion was good or bad in law. They said that their clients would be satisfied if their ownership was restored on their lands included in Abadi-Deh.
12. On the above issue, the following arguments will determine the merits of these cases:(1) Section 3, subsection (2) of the West Pakistan Land Revenue Act is very clear about existing rights when it talks about the inclusion or exclusion of lands in or from the site of a town or village. Although the Collector has the authority under the law, having regard to all the relevant conditions, to determine what lands should be included within the site of a town or village, a very important provision of Section 3, subsection (2) is that regard shall be had to all the subsisting rights of the land-owners.
This provision had been deliberately added, probably in the Act of 1967, to safeguard the proprietary rights of the land-owners. The fact is that inclusion, whatever its purpose, can in no way make an alteration in the righs of land-owners.
(2) While including the petitioners' areas in the Abadi-Deh they were not compensated at all. It is absolutely inconceivable that proprietary rights can be taken away altogether without compensation under any law,especially under Section 3 of the Land Revenue Act. A contrary interpretation of this law might open a flood-gate of arbitrary, highhanded and mala fide use of this authority by Revenue Officers.
(3) In this connection Article 24 of the Constitution of the Islamic Republic of Pakistan, is also relevant. It safeguards the proprietary rights of the citizens of Pakistan, of which they cannot be deprived except through proper procedure of law and by payment of compensation.
(4) It is very clear in the wording of Section 3 of the Land Revenue Act itself that the purpose of including any lands within the site of a town or village is not to tamper with the ownership rights; the purpose is that none of the provisions of the Land Revenue Act (of the nature of making periodical records, determination of disputes about boundaries, partition, assessment of land revenue etc.Etc.) would apply to the lands which have been included in the site of a town or village.The effect of inclusion is procedural as regards the provisions of the Land Revenue Act, and nothing else. Subsection (1) of Section 3 clearly says that, except for a limited purpose, i.e. For the record, recovery and administration of village cess, or for purpose of survey, nothing in the Act shall apply to land which is occupied (or included) as the site of a town or village and has ceased to be assessed to land revenue. Making this the basis of appropriating somebody's lands without ownership is indeed most arbitrary, to say the least.
(5) Even as regards long-standing entries in Jamabandis, it is settled law that they cannot be changed except by and through Civil Courts. The reason for this is that people's rights should not be summarily disposed of. A change in the ownership column in a Jamabandi can be made through a deed, a mutation or an order of a competent court,. And not through an executive order, or semi-judicial procedure of including lands in Abadi-Deh under Section 3 of the Land Revenue Act.
(6) The above position has been acceded to, and not controverted, by the representative of the State viz Extra Assistant Commissioner(Revenue).
ORDER13. I, therefore, decide that the ownership of the petitioners shall remain as before the inclusion of their lands in Abadi-Deh, and nothing whatever that has gone before shall change in any way their rights of ownership or. Any other rights that they had in relation to these lands. In consequence Mutation No.1789 dated 30.3.1982 shall be reviewed to show the petitioners as owners of these lands. The cultivation column shall also be altered, and if they are in possession, their possession shall be duly recorded. Justice demands that status quo ante should be restored and I direct that, as regards the present litigation it whould be so restored. Third parties involved shall be at liberty to prefer their claims before proper authorities and Courts of law. Since they are not present before this Court nothing can be said about their claims and counter-claims.
14. If at any stage and by any superior Court the petitioners' right of ownership over these lands is upset, they shall be allowed to come back to this Court to argue anew their case relating to the bona fides of the inclusion. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.