ORDER SHAHZAD HASSAN PERVEZ, MEMBER (JUDICIAL-I)- A revision petition was filed under Section 13 of Consolidation of Holdings Ordinance, 1960 by 271 land-owners of Mauza Sabz Pir, Tehsil Hassan Abdal, District Attock against consolidation scheme dated 12th of January, 1994 of the said village.
This revision petition was dismissed by Addl. Commissioner (Cons.), Rawalpindi on the ground that "law in providing the remedy of appeal does not vest the petitioners with the discretion to skip the lower appellate forum and go straight away into revision". The petitioners grounds for seeking revision of the order of Consolidation Officer in brief were that consolidation scheme was prepared secretly and fraudulently; the Advisory Committee was constituted by Consolidation Officer without consent of the villagers; Shamlat land of the village has also been illegally included in the scheme; no proper Chak Bandi has been made and that principles of consolidation have not been properly applied. Two out of 271 petitioners before Addl. Commissioner have filed second revision petition in this Court against the order of Addl. Commissioner dated 15th of August, 1994. The impugned order has been assailed on the ground that learned Addl. Commissioner has failed to exercise jurisdiction vested in him under law in order to rectify the wrong against the petitioners done by the order of Consolidation Officer.
2. Brief facts as stated in this revision petition are that Muza Sabz Pir Tehsil Hassan Abdal, District Attock was a village of which entire land was under occupancy tenants and by dint of Act No. VII of 1952, all the occupancy tenants became owners of the land comprised in their tenancies. The Jagirdars i.e. Original owners having lost their ownership in these tenancies also lost their ownership of the Shamlat Deh. The subordinate Revenue staff, it has been stated in the revision petition, in collusion with Jagirdar by way of mutation divided Shamlat of the village amongst them on 17th of December, 1959 in utter disregard of the provisions of Section 114 of the Punjab Tenancy Act. These petitioners applied to District Collector for undoing the division of Shamlat amongst the original land owners. They were directed to seek remedy in the Civil Court. Recourse to Civil Court, however, was not fruitful and civil suit was dismissed on 25th of June, 1992. In appal, District Judge vide his order dated 23rd of May, 1993 partially accepted the appeal and substituted the order of dismissal with the rejection of appeal providing option to the petitioners to seek their remedy before the Revenue authorities. During pendency of appeal, consolidation proceedings were undertaken in the village and consolidation scheme was approved on 12th of January, 1994 by Consolidation Officer. Feeling aggrieved of the consolidation scheme, the petitioners filed revision petition against order of Consolidation Officer citing special circumstances as under:-
(i) Consolidation proceedings were started on the application of persons who had purchased Shamlat land from the original landlords by way of mutations Nos. 1582, 1613 and 1756. Since these mutations, it is averred, were the result of fraud committed by Revenue staff in collusion with the original land owners, the consolidation scheme was bad in law. It is also alleged in the revision petition that entire consolidation proceedings were carried out secretly;
(ii) Killabandi which is an essential feature of consolidation was ignored in the scheme. Even after consolidation, the petitioner's holdings were left as they were before the consolidation.
(i.e) After promulgation of Act VII of 1952, the original owners having been deprived of every inch of land in the Revenue estate.
Also lost their ownership in the Shamlat Deh which under the Act of 1952 fell in the share of occupancy tenants who became owners of their respective tenancies.
The revision petition before Addl. Commissioner and the instant revision petition focuses on the following three core issues as agitated by learned counsel for the petitioners
(a) That there were special circumstances which necessitated filing of revision petition rather than recourse under Section 11 of the Consolidation of Holdings Ordinance, 1960 providing remedy by way of appeal against the order of Consolidation Officer.
(b) That proceedings relating to division of Shamlat Deh amongst the original land-owners sanctioned in 1952 and subsequent mutations whereby the original owners having received share of Shamlat later alienated them by sale to other persons were illegal and ought to have been quashed in revision petition before Addl. Commissioner. It is, their claim that original land-owners in Mauza Sabz Pir having lost every inch of land and had no right on Shamlat Deh which according to provisions of Section 114 ought to have been apportioned amongst occupancy tenants tuned into land owners by operation of the aforesaid enactment.
(c) Consolidation scheme was prepared in secrecy and the petitioners were not associated with it.
3. The learned counsel for the respondents submitted detailed written arguments rebutting the averments of the petitioners. Regarding (a), it is contended that after disposal of their appeal by District Judge, the right course for the petitioners was to i.e appeal before Revenue authorities against mutation No. 288 so as to ensure compliance of District Collector's orders dated 5th of October, 1985 which according to the petitioners provided them the whole relief. Instead of seeking remedy against their specific grievance in terms of the order of learned District Judge, they filed revision petition before Addl. Commissioner challenging the entire consolidation scheme of the village Sabz Pir. It was averred that time and again, the petitioners agitated their misconceived grievances, before wrong forums and having failed in their mis-directed attempt are now before the Board of Revenue in revision petition.
4. Regarding (b), it was denied that the entire village consists of occupancy tenants. There were other tenants such as tenants-at-will of the proprietary land of the original owners. In such cases proprietary rights of the original owners still exist as per law and entries in the record. It was averred by learned counsel for the respondents that the petitioners were occupancy tenants falling in clause (c) of sub-section (2) of Section 114. In case of such tenants, the provisions do not envisage any automatic or en- bloc conferment of proprietary rights on them. Such tenants could become owners of the land comprised in their tenancies only on payment of compensation to the landlords in cash, at the rate and within the time as was to be prescribed by the Government under the Rules framed for the purpose. The occupancy tenants who failed to make payment of the compensation within time have ceased to exist and they have now the status of ordinary tenants under the landlords. The claim of the petitioners that after having become full owners of the land of the village by operation of law introduced in 1952, the previous owners were left with no land and consequently Shamlat land also belongs to the occupancy tenants, is rebutted on the premix that Shamlat land is land of the village proprietary body and vests exclusively in the owners. The occupancy tenants holding land under the landlords to the extent of their tenancies have no concern whatsoever with the Shamlat land and cannot lay their claim an it. If matters of common properties i.e. Shamlat Deh, etc. The rights are always governed by the entries in the Wajib-Ul-Arz prepared in the last settlement which forms part of the standing record under Section 39 of the Land Revenue Act, 1967. In the instant case, the entries of Wajib-Ul-Arz prepared in the last settlement of 1924-25 are still in vogue having been kept in Bandobast Panjam of 1980-81.
According to these entries in the said Wajib-Ul-Arz, the Mufeed-e- aam is not liable to be possessed or improved by anyone while the ordinary Shamlat 13 and can be partitioned on the basis of ancestral shares. There is nowhere even the remotest indication that this land can be shared by the tenants. The Shamlat land of Sabz Pir has also along been shown in the revenue records, as it should have been, as owned and possessed by the landlords and their rights of ownership of this land remained unaffected by the Amending law of 1952.
5. Regarding (c), the respondents in their written arguments refuted the allegations that the consolidation proceedings were carried out secretly. In fact, it is asserted, that Mussawada scheme was approved in open assembly on 4th of November, 1993 after were publicity, with the consensus of right holders and members of Advisory Committee. No object whatsoever was raised by anyone.
The order of confirmation of the scheme was also passed in common assembly at a public place after the rights holders and signed/thumb marked the scheme in token of its acceptance. Both the present petitioners had also signed/thumb marked the scheme as acquiescence to the said scheme.
6. Having given careful consideration to the arguments of the parties and keeping in view judgment of the Honourable High Court in writ petition No. 431 of 1995 my findings are:-
(a) There were absolutely no special circumstances which necessitated filing of revision petition before Addl. Commissioner rather than submission of appeal under Section 11 of Consolidation of Holdings Ordinance, 1960. Section 13 of Consolidation of Holdings Ordinance, 1960 vests the Board of Revenue, Commissioner and District Collector with suo motu revisional jurisdiction. Contrary to the provisions of Section 164 wherein an aggrieved person can i.e an application seeking revision of an order within stipulated, period, the former section has no such dispensation. The petitioners having failed to avail the provided remedy of appeal could not therefore invoke the suo motu revisional jurisdiction of Addl. Commissioner. The revision was rightly dismissed on this score.
(b) If the petitioners had any grievance about division of Shamlat Deh effected in the year 1952, the right course for them was to i.e an appeal against mutations sanctioning such division of Shamlat Deh. By miscellaneous applications filed in the year 1956 they could not obtain and were rightly refused relief. Indisputably Shamlat Deh is governed by the conditions prescribed in Wajib-Ul-Arz.
The occupancy tenants who became owners of land by dint of operation of Act VII of 1952 were vested with ownership only to the extent of their tenancies. The original owners therefore did not loose their right in Shamlat Deh. This finding is also inconsonance with the observation in para 7 of the judgment given in writ petition No. 431 of 1995.
Reading of the record clearly reveals the fact that consolidation proceedings were undertaken with consensus of the land-owners as recorded in Jamabandi of the year 1987-88. The scheme was confirmed in open assembly! The present petitioners had thumb marked/signed the scheme and the confirmation as a token of Mamand V. Bashir Ahmad (Shahzad Hassan Pervez, Member (,Judicial-1)) acceptance. It is, therefore, now not open to. Them to allege that the proceedings were undertaken in secrecy. The contention of the petitioners on this ground therefore deserve no consideration.
Resultantly, the revision petition being devoid of force is dismissed.
7. Arguments in this case were heard on 14.9.1999 and judgment reserved which has now been announced and may be conveyed to Addl. Commissioner (Cons.), Rawalpindi, District Collector, Attock and through him to the parties.