HAFEEZULLAH ISHAQ, MEMBER.- This revision petition is directed u/s 13 of the Consolidation of Holdings Ordinance, 1960, against the order dated27.6.1988 of the Additional Commissioner (Consolidation) Sargodha Division, whereby he rejected the revision petition of the petitioner.
2. Brief facts of the case are that the Consolidation Scheme of the village Mehloana, Tehsil and District Jhang was confirmed u/s 10(3) of the Consolidation of Holdings Ordinance ibid by the Consolidation Officer on 27.3.1980. The petitioner feeling aggrieved filed an appeal in the court of the Collector (Consolidation) who vide his order dated 17.3.1988 rejected it holding that the land in dispute contained a petrol pump constructed by Sh. Mohammad Iqbal who did not have any other holding in the village which implied that he (respondent No.1) had purchased the disputed land for installing a petrol pump. He gave l/4th share to the petitioner for the reasons that he purchased land from the petitioner. This order was assailed by the petitioner in the court of the Additional Commissioner (Consolidation) who held in his order that 8 kanals 3 marlas of land in khasfa No. 1230/2 and 1231/2 was purchased by the petitioner Shamir Khan from NaWab Din and Abdul Sattar vide mutation No.980. Half of this land was further sold by Shamir Khan to Sh. Muhammad Iqbal vide mutation No.1003. Thus in this land Shamir Khan and Sh.Muhammad Iqbal were shareholders.
According to Musawada Tariqa Taqseem Shamlat land had to be divided among the owners. This land was of Shamlat and in Shamlat lands the possession was most important. Therefore, the division of the land was done by the Consolidation Officer in accordance with law. He rejected the contention of the petitioner in respect of rejoining the portioned khata. The second question which engaged the learned Additional Commissioner (Consolidation)'s attention was of possession over portion of the disputed land in khasra No. 1230/2 and 1231/2. According to the record both Shamir and Sh. Mohammad Iqbal had joint possession of khasra No. 1230/2 and 1231/2. In khasra No. 1230/2 Sh. Muhammad Iqbal was recorded as in possession on half of the land and the other half was in possession of Shamir Khan and Muhammad Ismail. One half of the land contained a Petrol Pump of Pakistan Burma Shell, which was given to Sh. Mohammad Iqbal in consolidation scheme and the rest including shops were allocated to Shamir Khan. Actually Sh. Muhammad Iqbal was owner of the land under the petrol pump. He observed that Sh. Mohammad Iqbal purchased the land for construction purpose, therefore, it was necessary for the revenue officer that he should make tatima on the mutation which existed on the part Patwar but not on part Serkar. According to tatima the land under the petrol Pump was in possession of Sh.Muhammad Iqbal. The Consolidation Officer who was deputed to visit the site reported that the land under the petrol pump is in possession of Sh. Muhammad Iqbal and Shamir had 6 shops along the road side and rest of the land. The claim of the petitioner about killa No.16/1 to 16/3 of Square No.86 and killa No. 11 of Square No.87 was also disallowed. He held that the petitioner had no possession on the land in dispute. The final claim of the petitioner was accepted by the Additional Commissioner (Consolidation) and he ordered to exclude the name of Mohammad Ismail from Scheme No.128.
Hence this revision petition.
3. The learned counsel for the petitioner raised at the outset the question of jurisdiction of consolidation authorities. More specifically he contended that the jurisdiction of consolidation on authorities did not extend to dwelling houses, petrol pump and commercial building. The definition of land in the Punjab Tenancy Act and the Land Alienation Act land, according to him, did not include shops, hotels, commercial buildings. Continuing his argument the learned .Counsel maintained that the petitioner was owner of 8K-5M in Shamlat Deh. On 30.10.1972 he installed a petrol pump on the land in his possession and leased it out to P.B.S for 30 years ending in 2001 A.D.
The petitioner was regularly receiving rent from the lessee. Respondent No.1 Sh. Muhammad Iqbal purchased 4K-1 ((Fraction)) M land from the petitioner on 11.1.1973 for residential purposes as was evident from the mutation. However, in consolidation operations the entire petrol pump was given to respondent No.1. No Tattima regarding purchase of 4K- 1 is M land was made on Parat Sarkar by the revenue authorities but only on Parat Patwar. No finding on this point was given by the ADC/Collector (Consolidation) in his order dated 17.3.1988 rejecting the petitioner's appeal. The case was remanded by the Lahore High Court and after remand some more respondent were added in the appeal pending before the Collector (Consolidation). The Additional Commissioner
(Cons) had also not considered all the points raised before him but only the point of distribution of shamlat deh. Respondent No.1 was not a khewat holder and as such he was not owner of land in the village. According* to Wajibul Ars Taqseem Shamlat only a khatedar could request partition of Shamlat Deh. Further that Tariqa Taqseem did not provide for distribution of buildings and commercial property.
4. The learned counsel for the respondent No.1 stated that the question of consolidation of Petrol Pump etc. Was not raised by the petitioner before any forum previously and that Tariqa Taqseem did not forbid partitioning of such property. Shamlat Deh was to be distributed according to possession. In order to determine the correct position on the ground a commission was appointed by the Additional Commissioner (Consolidation) who submitted his report after vitiating the spot and the learned Additional Commissioner (Consolidation) duly took into consideration the commission's report. The land under the Petrol pump was partitioned on consent originally during the consolidation proceedings and Shamir Khan had constructed shops on the land falling in his wanda after consolidation according to the commission's report. There was no illegality or irregularity in the orders of both the courts below which were concurrent findings.
5. The contentions of other respondents have been recorded in R.O.Rs No. 1311/88, 1520/88 and 1567/88 which with the heard alongwith the instant revision petition and have been disposed of by a separate order.
6. The learned counsel for the petition stated; in rebuttal, that the questions of law and jurisdiction can be raised at any time. The petitioner had objected to the appointment of commission. Some other shops had been constructed before consolidation. Out of frontage of 46 karams on the road the petitioner had been given frontage of only 10 karams on the road.
7. I have considered the arguments, perused the case record as the sketch map produced by the patwari. The first question raised by the learned counsel for the petitioner was whether the jurisdiction of consolidation authorities extended to dwelling houses, petrol pump and commercial buildings. The definition of land is not given in the Punjab Consolidation of Holdings Ordinance and we have to refer to the Punjab Tenancy Act and the Punjab Alienation of Land Act for the purpose.
The definition given in the Punjab Tenancy Act is reproduced below and is similar to the one given in the Punjab Alienation of Holdings Act in essential detail.
"Land means land which is not occupied as the site of any building in a town or village and is occupied or has been let for agricultural purposes or for purposes subservient to agriculture or for pasture, and includes the sites of buildings and other structures on such land;"
The answer to the query posed by the learned counsel regarding the jurisdiction of the consolidation authority over dwelling houses, petrol pumps and commercial building situated in a town or village is in the negative. But it would extend to sites or building and other structures on land which is used for agricultural purposes. If the sorrounding land is being used for agricultural purposes unless such structures are specifically exempted or excluded by competent authorities.
However, a right holder who does not wish consolidation on such sites or his valuable property then is at liberty to apply to the Board of Revenue under Section' 9(a) of the Consolidation of Holdings Ordinance for exclusion of such sites from the consolidation scheme before its confirmation. In the instant case not only the petitioners and many respondents did not apply for such exclusion but also willingly submitted to consolidation operations and hence they cannot question the validity of consolidation proceedings. The logic advanced by the leafned counsel for the petitioner that respondent No.1 Sh. Muhammad Iqbal had purchased land from the petitioner in January 1973 for construction of house in the vicinity of the disputed petrol pump is rather hard to swallow. The respondent No.1 who was a resident of Jhang Town and well known transporter could not be expected by any stretch of imagination to leave his house in Jhang Town and live in wilderness in the vicinity of a petrol pump owned by some one else. The other merits of the case have been discussed in detail in the impugned order. The reasons given therein by the learned Additional Commissioner are cogent and well founded. The another additional point taken before me is that respondent No.1 was not a khewat holder and as such he was not owner of land in the village. This positipn is somewhat contradictory to the petitioners statement that he had sold 4K-1^M to Sh.
Muhammad Iqbal on 11.1.1973. Which was duly reflected in the revenue record. Thus Sh. Muhammad Iqbal was a landowner within the meaning of Section 2(J) of the Consolidation of Holdings Ordinance and was entitled to distribution of Shamlat land in his possession. In these circumstances there are no reason to interfere with the impugned order and the revision petition is accordingly dismissed.