The brief facts of the case are that the petitioner filed a criminal complaint under section 133, Cr.P.C. Against the respondents Nos.1 to 5, before the Resident Magistrate, Daska alleging that the respondents have closed and obstructed the public path situated in village Matteke Nagra amounted to public nuisance and that the learned Resident Magistrate recorded the summary statement of the petitioner on 13-10-1998 and the concerned Revenue Officer directed the respondents vide order, dated 22-10-1999 to remove the obstruction within a period of 7 days and that the respondents Nos.1 to 5 contested the complaint on merits and filed a written reply to .The same and that the respondents did not specifically deny the alleged obstruction of the way and the learned trial Court inspected the spot on 20-7-1999 and directed the Teshildar/Revenue Officer to demarcate the property in dispute and that the Revenue Officer conducted the demarcation proceedings and prepared his report, dated 10-8-1999. It was found that the respondents encroached upon the public ways consisting of Khasra No,678 to the extent of 4 Marlas and included the same in their Khasra No,677 by constructing a Haveli upon the same and that the respondents, however, filed the objections, dated 28-9-1999 against the report and that the trial Court inspected the spot on 20-7-1999 and the revenue officer was assigned the duty of demarcation with the consent of the parties and that the encroachment was though proved on the record, but the proceedings were being delayed by the learned trial Court. The petitioner thus was constrained to file Writ Petition No,18831 of 1999 titled as Muhammad Munir v. Rizwan Nazir and others with a view to get the matter decided expeditiously and that the writ petition was disposed of vide the order, dated, 7-10-1999 by this Honourable Court with the direction to decide the complaint within a period of one month and that the learned trial Court with a view to expedite the matter instead of acting upon the report of the Revenue Officer which was already on the file, opted to visit the spot on 3-11-4999 and the learned trial Court asked the Halqa Girdawar to prepare a demarcation report and that the Girdawar accordingly prepared his report, dated 3-11- 1999 and reported that no encroachment was found in possession of the respondent and that the learned Resident Magistrate on the basis of the report of the Girdawar, dated 3-11-1999 dismissed the complaint of the petitioner vide the order of the same date and that the petitioner challenged the same order before the learned Additional Sessions Judge, Daska through a revision petition which was also dismissed vide order dated 29-3-2000.
2. The writ was admitted to regular hearing with notice to the respondents for 16-5-2000 and on 15- 5-2000 Mr. Muhammad Athar, Advocate High Court filed his power of attorney for which date the list was cancelled and the case was again listed for today after notice as recorded at the back of the folder Mark-A but neither the respondents nor the counsel for the respondents appeared as such they are. Proceeded ex parte.
3. Ex parte arguments heard.
4. The learned counsel for the Writ Petitioner has urged that both the Courts below failed to search out the truth and real point in issue and passed illegal orders without application of mind and that the orders have not been passed to achieve the ends of justice and that the demarcation report prepared by the Revenue Officer was on the file of the learned trial Court and the objections filed by the opposite-party were still under consideration and that according to the demarcation report of the competent Revenue Officer the respondents had encroached upon an area of 4 Marlas of the public way, but both the learned Courts below for their own convenience failed to take into consideration the same report and that the second report prepared by the Halqa Girdawar was not only prepared by an incompetent person, but also was unnecessary in presence of the report by the Revenue Officer.
5. The relevant provision of law as to the classes of Revenue Officers is contained in section 7 of the Punjab Land Revenue Act, 1967 which reads as under:-- Section 7. Classes of Revenue Officer--(1) There shall be the following classes of Revenue Officers, namely:--
(a) The Board of Revenue; (b) the Commissioner; (c) the Collector;
(d) the Assistant Collector of the first grade; (e) the Assistant Collector of the second grade.
(2) The Deputy Commissioner of the District or the officer performing for the time being functions as such, shall be the Collector thereof.
' The relevant provisions regarding the power of Revenue Officers to define boundaries has been mentioned in section 117 of the said Act, which reads as under:-- Section117. Power of Revenue Officers to define boundaries.--(1) A Revenue Officer may, for the purpose of framing any record or making any assessment under this Act, or on the application of any person interested, define the limits of any estate or of any holding, field or other portion of an estate, and may, for the purpose of indicating those limits, require bondary marks to be erected or repaired.
(2) In defining the limits of any land under subsection (1), the Revenue Officer may cause bondary marks to be erected on any boundary already determined by, or by order of any Court or Revenue Officer or any Forest Settlement Officer appointed under the Forest Act, 1927 (XVI of 1927), or restore any boundary mark already set up by, or by order of, any Court or any such officer.
' Vide Government of the Punjab Notification No,2313-73/629-L-R-I-- With reference to Notification No,6488-71/3130-L-R-I,, dated the 14th November, 1971, issued by the Board of Revenue, Punjab, and published in the Punjab Gazette of 17th December, 1971, and in exercise of the powers confelired by section 121 of the West Pakistan Land Revenue Act, 1967, read with section 122 thereof and with prior approval of the Government of the Punjab, the Board of Revenue, Punjab, is pleased to direct that in the West Pakistan Land Revenue Rules, 1968, in their application to the Province of the Punjab, the following amendments shall be made, namely:
(1) After Part IX, a new part containing the following rules hall be added, namely:-- "PART IX-A.---Demarcation of land and Eviction of Unauthorized land owners Rule 67-A. Demarcation of land. (1) An application under section 117 for defining the limits of an estate, a holding, a field or any portion thereof, shall contain the following particulars:-
(a) Designation of the Revenue Officer to whom it is addressed.
(b) Name, parentage and address of the applicant and if the applicant is minor, or a person of unsound mind, the name, parentage and address of his guardian or of a male member of his family.
(c) Name, parentage, and address of the person or persons against whom the application is made, and if he or anyone of them is a minor or of unsound mind, the name, parenage and address of his guardian or of a male member of his family.
(d) Location and full description of the land to be demarcated.
(e) A brief statement of facts and reasons necessitating the making of application.
(f) Signatures or thumb-impression of the applicant.
(g) Any other matter which is necessary for the proper disposal of application.
(2) An application under sub-rule (I) shall bear the court-fee stamp of rupee one and shall be accompanied by--
(a) an attested copy of the latest entry in Register Haqdaran-e-Zamin or Jamabandi relating to the land mentioned in the application; and
(b) an attested copy of the portion of the map of the estate showing field number mentioned in the application.
(3) The application shall be presented to--
(a) the Revenue Officer-in-Charge of the Circle in case the land to be demarcated is situated within a Tehsil; and
(b) The Revenue Officer-in-Charge of a Sub-Division, in case the limits of the land to be defined extended to an adjoining Sub-Division or District.
(4) On the receipt of such application duly accompanied by the attested copies mentioned in sub- rule (2), the Revenue Officer concerned shall-
(a) cause the application to be registered in the relevant column of the Register to be maintained in his office in Form XXXIII-A;
(b) fix time and date for demaraction of boundaries; and
(c) cause a notice in Form XXXIII-P to be issued in duplicate to--
(i) the parties to the application;
(ii) Lambardar of the village in which the land mentioned in the application is situated;
(iii) Field Kanungo of the Cirlce;
(iv) Revenue Patwari of the village if the notice is not to be served through him; and
(v) any other person whose presence at the time of demarcation of boundaries is considered necessary or expedient by the Revenue Officer.
(5) The notice issued under clause (c) of the preceding sub-rule shall be served on the persons mentioned therein, in the following modes, at least one week before the date fixed for demarcation of the land--
(a) By delivering a copy thereof to the person mentioned therein and obtaining his signatures or thumb-impression on duplicate copy in token of his having received the same.
(b) In case of refusal to receive the notice or absence of such person, by affixing a copy thereof on the outer door of his house or place of residence, in the presence of at least one witness and also by beat of drum at the expense of the applicant.
(c) If any person to be served is residing at a place, other than the village in which the land is situated, notice shall be served on him by means of registered post "Acknowledgement Due", or by any other means as the Revenue Officer deems fit. The expenses for such service shall be done by the applicant.
(6) At the time and on the date fixed for demarcation of boundaries, the Revenue Officer shall, in the presence of the parties and other persons mentioned in clause (c) of sub-rule (4) as may be present in response to the notice served on them, cause the measurement of the land to be taken under his personal supervision, strictly in accordance with the instructions and standing orders on the subject issued by the Financial Commissioner and the Board of Revene from time to time.
(7)(a) Soon after taking necessary measurements, the Revenue Officer, on the basis of data so collected, shall draw up a plan of the encroached area, if any, and shall prepare a report "inter alia", containing the following details:--
(i) Time, date and place of demarcation of boundaries.
(ii) Full description of the land measured and demarcated.
(iii) Mode and details of the measurements taken.
(iv) Person in whose presence such measurements were taken and other demarcation proceedings took place and the objection, if any, raised by anyone or more of them during that time.
(v) Limits of the existing possession including the exact dimensions of the encroached area, if any and the names of the persons found in possession thereof.
(b) The Revenue Officer, after preparing the report, shall read out the same to the parties and record their statements as to whether they have understood the proceedings or any part thereof and have any objection against any portion of his report.
(c) After recording such statements and his opinion thereon, the Revenue Officer, on return to his Headquarters, shall place the report, together with the plan of encroached area and statement of the parties, on the file and cause the particulars of the proceedings entered in the relevant columns of register maintained in office in Form XXXIII-A.
Section 67-B. Eviction of unauthorized landowners.---(1) An application under section 122 for the eviction of a landowner found in wrongful possession of a land as a result of demarcation proceedings taken under section 117 read with Rule 67A shall contain the following particulars:--
(a) Name, parentage and address of the applicant, and in case he is minor or a person of unsound mind, parentage and address of his guardian or of a male member of his family.
(b) Name, parentage and address of the person who has been found in wrongful possession of the land (hereinafter referred to as the respondent) and if he happens to be a minor or a person of unsound mind, the name, parentage and address of his guardian or of any male member of his family.
(c) Location and description of the land, the possession of which is required.
(d) Brief statement of demarcation proceedings, its result and reasons for the application.
(e) Any other facts which may be necessary for the fair disposal of the application.
(2) The application shall bear the court-fee stamp of rupee one and shall be accompanied by--
(a) a certified copy of the report, including copy of the plan of encroached area prepared by the Revenue Officer in the demarcation proceedings conducted by him under rule 67A; and
(b) as many copies of the application as the number.
(3) The application shall be addressed and submitted to the Collector Incharge of the Sub-Division in which the land in dispute is situated:-- ' Provided that where the demarcation proceedings are conducted by the Revenue Officer, Incharge of the Sub-Division, the application shall be addressed and submitted to the Collector of the District.
(4) On the receipt of the application, the Collector shall fix a date for its hearing and cause its notice in Form XXXIII-C, together with a copy of the application, to be served on the respondent in the manner prescribed in sub-rule (5) of the rule 67A.
(5) On the date fixed for hearing, the respondent may put up his appearance either in person or through an authorized agent and may file his reply to the application. The Collector, on the same day of hearing or on any subsequent date to which the proceedings may be adjourned, after hearing the parties and examining the record, including the file of demarcation proceedings, may- -
(a) direct fresh demarcation proceedings to be taken by the same or any other Revenue Officer, if he is satisfied that the landowner whose eviction from the land has been sought, had no knowledge of the demarcation proceedings or there was some material irregularity committed by the Revenue Officer in such proceedings; or
(b) accept the application and order eviction of the respondents or any one or more of them who have been found in wrongful possession of the land or any portion thereof: Provided that where the proceedings substantially involve a question of title or an intricate question of law, the Collector shall not pass any order on the merits of the application and shall refer the parties to the Civil Courts.
(6) If the Collector orders fresh demarcation proceedings to be taken by the same or any other Revenue Officer, such Revenue Officer shall follow the procedure laid down in rule 67A to the extent and from the stage it becomes applicable.
(7) On the acceptance of the application, the Collector shall afford the respondent an opportunity of delivering possession of the disputed land to the applicant within a period not exceeding one month and if he fails to do so, the Collector, on an application made by the applicant, shall issue a warrant of eviction in Form XXXIII-D which shall be executed by an official not below the rank of a Kanungo, with or without police assistance, according to the circumstances of each case. Punjab Notification No,2313-73/629, LR-I, dated 23-11-1973. (See PLD 1974 Punjab Statutes, page 84).
' In the case of Anwar Club and another v. Muhammad Sarwar (PLD 1992 Lahore 63) where a Qanungo had made a demarcation report. It was observed as under:-- "Rule 67-A of the Punjab Land Revenue Rules, 1968, framed under the said Act, also requires a Revenue Officer to define the limits of an estate, a holding, field or any portion thereof. Accordin to sub-rule (1') of rule 67-A, an application, under section 117 of the said Act, for demarcation of any field, etc., is to be made to a Revenue Officer. Clause (b) of sub-rule (4) says that on the receipt of the application, the Revenue Officer shall fix time and date for demarcation of boundaries and under clause (c) thereof, he is required to cause a notice of the application to be given to--
(i) the parties to the application;
(ii) Lambardar of the village in which the land mentioned in the application is situated;
(iii) Field Kanungo of the Circle;
(iv) Revenue Patwari of the village if the notice is not to be served through him; and
(v) any other person whose presence at the time of the demarcation of boundaries is considered necessary or expendient by the Revenue Officer.
' It has been laid down in sub-rule (6) that at the time and on the date fixed for demarcation of boundaries, the Revenue Officer shall, in the presence of the parties and other persons mentioned in clause (c) of sub-rule (4) as may be present in response to the notice served on them, cause the measurement of the land to be taken under his personal supervision, strictly in accordance with the instructions and standing orders on the subject issued by the Financial Commissioner and the Board of Revenue from time to time. Sub-rule (7) provides that after taking necessary measurement, the Revenue Officer shall prepare a plan and a report. It is also his duty to read out his report to the parties and to record their statements as to whether they have understood the proceedings and have any objection against any portion of his report. Sub-rule (7) further provides that after recording such statements and his opinion thereon, the Revenue Officer, on return to his Headquarters, shall place the report together with the plan of encroachment area and statements of the parties, on the file and cause the particulars of the proceedings entered in the relevant column of the register prescribed for the purpose.
' Above provisions of the said Act and of the rules made thereunder leave no room for doubt that although the Revenue Officer can require the Field Kanungo of the Circle to be present at the time of the demarcation yet the demarcation is to be carried out under the personal supervision of the Revenue Officer and the necessary plan and the report are also to be prepared by the Revenue Officer himself. I, therefore, agree with learned counsel for the petitioners and hold that a Field Kanungo muchless a Naib Kanungo is not competent to make a demarcation report in question, which was recorded by a Naib Kanungo, was not legal evidence for the purpose of deciding the suit giving rise to this revision. In this view of the matter the Courts below committed a material irregularity in relying on the said report while passing the judgments and decrees assailed herein."
6. The result is that the petition merits to be allowed and the same is allowed and the impugned orders, dated 29-3-2000 passed by the Additional Sessions Judge, and dated 3-11-1999 passed by the Resident Magistrate, Daska are held illegal and set aside. This order will not come in the way of the Revenue Authorities to take fresh action strictly in accordance with section 7 of the Punjab Land Revenue Act, 1967 and rule 67A of the Punjab Land Revenue Rules, 1968. Respondents Nos.1 to 5 are also burdened with costs of Rs,500.