' This suo motu revision petition was taken up under section 13 of the Consolidation of Holdings Ordinance, 1960 on the basis of complaints received from certain land-holders in village Mangat, Tehsil Phalia, District Gujrat. The consolidation scheme of this village was confirmed by the A. C. O.
On 30-4-1976 under section 10(3) of the Consolidation of Holdings Ordinance, 1960.
2. The right-holders were heard through their counsel on 22-10-1976 and the Judgment was received. Mr Muhammad Aslam Butt Advocates argued the case on behalf of those right-holders who wanted the present consolidation scheme to be set aside while Malik Talib Hussain, Advocate, made his submissions on behalf of those who did not want fresh consolidation. Both the counsel have also submitted written arguments which are placed on the file.
3. Mr. Muhammad Aslam Butt, Advocate has submitted as follows:-
(i) Consolidation proceedings were started on 23-5-1971 and the scheme was confirmed on 30-4- 1976 in spite of the fact that there were many irregularities of serious nature.
(ii) "Taqsim Rqaba" has not been done according to the settled principles of consolidation i.e, many right-holders have been deprived of their pre-possessed area.
(iii) Right-holders have not been given parcha zamindara alongwith sketch map of the area allotted to them in consolidation.
(iv) The consolidation scheme was first prepared in pencil which was later on changed.
(v) Representatives of absentee right-holders, minors and lunatics have not been appointed as required under the rules.
(vi) Members of the Advisory Committee were not taken into confidence while distributing the area among the right-holders.
(vii) Entitlement of some land-owners have been increased while in some cases it has been decreased.
(viii) A majority of the land-owners have suffered as a result of the distribution of their `Nian' land.
The learned counsel has cited 10 cases in which right-holders have been either totally deprived of the 'Nian' area or have received less area than they were entitled to. This was done, it is alleged, to give undue benefit to some influential landowners.
(ix) Paths have been created for certain right-holders from out of the Shamlat area which is against the rules.
(x) About 200 appeals have been filed. This shows that a majority of land-owners are not satisfied with the present consolidation scheme.
4. In the end the learned counsel has requested for the cancellation of the consolidation scheme in order to remove the above defects and to protect the rights of the land-owners.
5. Malik Talib Hussain, Advocate, has made the following submissions:-
(a) Total number of khatas before consolidation was 3328. As a result of consolidation these khatas have been reduced to 1074 while the number of plots has been reduced from 2918 to 1094.
This shows that consolidation has been done properly.
(b) Members of the Advisory Committee were appointed according to `Musawada Scheme' and the 'Musawada Scheme' was accepted by all the land-owners of the village in an open assembly (Jalsa-e-Aam) on 29-4-1973. No appeal or complaint was filed against the sanction of the `Musawada Scheme'. The consolidation scheme was confirmed 30-4-1176 in the presence of all the right-holders of the village.
(c) The paths and the connecting roads are according to the 'Mussawada Scheme'.
(d) Some of the land-owners held excess area illegally in their possession before consolidation.
They have, under the consolidation scheme, been made to disgorge this excess area and it is these land-owners who have instigated other right-holders to file appeals and complaints. The learned counsel has cited 9 such cases.
(e) 120 appeals were filed within the prescribed period of 60 days, while 40 appeals were filed after the expiry of this period. It is, therefore, inscorrect to say that appeals could not be filed because of stay orders issued by higher Courts.
(f) It is also incorrect that paths have been created for the benefit of individual right-holders. In fact no path has been created in contravention of the 'Musawada Scheme'. Therefore, there is no violation of 'Musawada Scheme' in this behalf.
(g) About 27 land-owners have been adjusted in plots near the abadi deh in 'Nian' area against whom appeals have already been filed.
(h) Minors, absentees and right-holders of unsound mind were duly represented by their co- sharers and relatives. There is not a single instance where a guardian or mutwalli was not appointed.
(i) There are as many as 894 schemes and no excess land has been given to any land-holder in any of the scheme.
(j) The land-owners who have been deprived of their 'Nian' land have already given their consent in this behalf.
(k) Only 96 persons appeared and complained against the consolidation scheme to the Consolidation Officer, Headquarters, Board of Revenue, during his visit to the village. The Consolidation Officer found that only 27 objections regarding adjustments of plots were genuine and that their grievances could be redressed through appeals.
6. In the end the learned counsel has submitted that fresh consolidation, if ordered, will take another two or three years to finalise and it will create complications and lead to further litigation in the village.
7. The consolidation work was started in the village on 23-5-1971 and the scheme was confirmed on 30-4-1976. The total number of schemes is 894. The number of khatas has been reduced from 3328 to 1074 and of plots from 2918 to 1064. This shows that the scheme was not hurried through and the objective of consolidation i.e, the reduction of plots, has been more or less achieved.
8. I have gone through the report dated 25-6-1976 of the Consolidation Officer, Headquarters, Board of Revenue. It shows that 27 persons raised objections against the distribution of 'Nian' area.
Out of these, 12 complaints were found to be genuine. Another 96 right-holders raised miscellaneous objections. Of these, only 26 were found to be correct. A list of these complaints has been placed on the file. Most of the complainants have filed appeals. It is, therefore, not very relevant now to say that parcha zamindaran was not issued to the right-holders as appeals could not have been filed if the right-holders were not aware of the area allotted to them in consolidation. A majority of the right-holders who appeared before me seemed to be fully aware of the land allotted to them in consolidation,
9. The total number of schemes in the village is 894 including the scheme relating to the Provincial Government land (No, 893) and the scheme relating to abadi deh (No, 894). A list of the right- holders of the entire scheme is placed on the file. I have examined these schemes and find that in no scheme has a land-owner been allotted 10 marlas short or in excess of his entitlement. This increase or decrease is within the permissible limit. I also find that the number of plots has not increased in any scheme.
10. The record also shows that there has been no violation of 'Musawada Scheme'. The paths have been created according to this scheme. It is not correct to say that the area of paths has been taken out of the land of `asaish-deh' as actually there is no khata of asaish-deh' in the village. The area of 'rifah-a-amaa' in different pattis has been kept intact with slight variations. The total area of paths before consolidation was 324 kanals 17 marlas. It now stands at 258 kanals 17 marlas. The reduction in the area has been due to the fact that more area has been reserved for the school, graveyard and the hospital.
11. 150 appeals have been filed against the confirmation of the consolidation scheme. Of these, 89 appellants, have only individual grievances and they do not want the schema; to be set aside. The area involved in these appeals is 1364 acres. The remaining 61 appellants are against the present scheme and want the consolidation to be done anew. The area involved in these appeals is 821 acres. The total area involved in all these appeals is 2185 acres which is less than half of the total area of the village which is 5608 acres. A list of the appellants has been placed on the file.
12. I have carefully gone into the objections regarding 4Nian' land. The position in the 10 cases cited by the learned counsel Mr. Muhammad Aslam Butt, Advocate is as follows:-
(i) Mst. Sana Bibi of Scheme No, 673 has been deprived of 16 marlas of 'Man' area.
(ii) Mst. Rabia of Scheme No, 43 has been deprived of 12 kanals land of this category.
(iii) Saleh of Scheme No, 286 has been deprived of 14 kanals.
(iv) Ghulam Rasul of Scheme No, 309 has been deprived of 8 kanals. Ho has given up 16 kanals Wan' area voluntarily. He has also filed an appeal.
(v) Sai Muhammad of Scheme No, 310 has been deprived of 15 kanals.
(vi) Mst. Rehmat Bibi of Scheme No, 309 has been deprived of 3 kanals.
(vii) Khuda Bakhsh of Scheme No, 319 has been allotted 8 kanals in place of 12 kanals. He has filed an appeal.
(viii) Barkat of Scheme No, 273 has been deprived of 5 kanals 2 marlas. He has filed an appeal.
(ix) Malka of Scheme No, 651 has been deprived of his land measuring about 14 acres near the village abadi. He has filed appeal.
(x) Mirza of Schemes Nos. 107 and 108 has been given 5 kanals in place of 8 kanals. This is according to his share.
13. On the basis of the above discussion and perusal of the record. I have come to the conclusion that it is neither necessary nor desirable to set aside the entire consolidation scheme. Most of the mistakes can be cured and grievances of the right-holders removed through appeals/revisions.
The village is ridden with factionalism and if the present scheme is cancelled it will lead to complications and lead to endless litigation. It will then take quite a few years to finalise the work and a majority of the land-holders who have no grievances and are satisfied with the present scheme will suffer unnecessarily. However, there is no denying the fact that the distribution of 'Nian' land has not been done properly and justly. Some of the land-owners who did no have any 'Nian' area have been adjusted near the village abadi at the cost of those who held such land before consolidation. The distribution of `Nian' land should have been confined to those right-holders who held such land before consolidation. I am, therefore, of the view that partial modification of the scheme is necessary in the interest of justice. I, therefore, set aside the consolidation scheme so far as the distribution of 'Nian' area is concerned and remand the case to the Collector (Cons.), Gujrat and direct that he should himself take up the distribution of `Nian' area under section 10(4) of the Ordinance. He should prepare the list of those right-holders who held the 'Nian' land before consolidation. This should be done in consultation with the members of the Advisory Committee and in an open assembly before all the right-holders in the village. A five acre belt around the abadi deh may treated as 'Nian' area. Further, every right-holder should be given proper hearing and his area adjusted according to his entitlement. Appeals/Revisions pending before lower Courts and involving `Nian' land will become infructuous under the above orders. However, cases involving land other than 'Nian' land may be disposed of by the Collector/Additional Commissioner as the case may be.
14. The parties should be informed through Collector (Cons.), Gujrat and also through the counsel.