This writ petition has been filed to call in question the orders dated 14.6.1999, 7.10.1997 and 13.12.1995 passed by Member, Board of Revenue and Additional Commissioner, Revenue, Respondents Nos, 3 and 2 respectively.
2. The facts giving rise to the filing of this writ petition are to the effect that Respondent No, 1 filed two different applications before Assistant Commissioner Sadar Gujranwala, for demarcation of Khasra number 2024/90 and 864 located in village Dullay Wala Guranwala, which was dismissed by the Collector through, his order dated 26.6.1995 on the ground that the Civil Courts has already seized of the matter and appointed Tehsildar Gujranwala, as Local Commission for demarcation of the said Khasra numbers. The order of the Assistant Commissioner/Collector was challenged by Respondent No, 1 through an appeal before the Additional Commissioner Gujranwala, who vide, his order dated 13.12.1995 accepted the appeal observing that the revenue officer is competent to demarcate the land. The revision petition against the order of the Addl. Commissioner filed by the petitioner had been dismissed on 7.10.1997 and review against the same met with failure on 14.6.1999.
3. Learned counsel for the petitioner has contended that the petitioner had filed a suit for declaration with regard to the same khasra numbers wherein a Local Commission to demarcate the land was appointed and the Local Commission submitted his report against Respondent No, 1 and therefore he had withdrew the suit. He filed another suit for possession. In that suit too the revisional Court passed and order and a Local-Commission was appointed and on whose report, Respondent No, 1 had again withdrew his suit for possession. After exhausting the remedies before the Civil Court the petitioner applied to the revenue functionaries for demarcation of the same property. Learned counsel has further contended that Khasra Number 864 was an evacuee property and it was allotted to the original allottee from whom this was purchased by the petitioner, who had made construction thereon i,e, Khasra Number 864 which is constructed land not within the ambit of revenue functionaries.
4. On the other hand, learned counsel for contesting respondents has vehemently opposed the arguments of learned counsel for the petitioner contending that the revenue officer is empowered to demarcate the estate or holding of a person and the Local Commission appointed by the Civil Court has not barred the jurisdiction of the revenue officer.
5. I have heard arguments of learned counsel for the parties and perused the record.
6. Respondents had applied to the Assistant Commissioner for demarcation of the Khasra Numbers 2024/900 and 864 claiming to be a common path occupied by the present petition. It is an admitted position that respondents had filed a suit for declaration in which an application for temporary injunction was filed which was rejected by the trial, Court vide, his order dated 29.1.1991.
The said order was challenged by Respondent No, 1 through an appeal which was disposed of with the direction to the lower Court to appoint some responsible revenue officer of higher pedestal for demarcation of the suit property. 'Under the direction of the appellate Court; Tehsildar Gujranwala was appointed as a Local Commission, by the Civil Court who, submitted his report on 5.5.1992 observing that Khasra Number 2020/873 measuring 8 Kanal belonging to Muhammad Riaz ul Haq petitioner and 8 marla of Khasra was used of Mattel road and more than 34 marla out of Khasra No, 2024/900 was also under the constructed Matteled road and on other part of Khasra Number 2023/873 petitioner had constructed building where an electricity meter has been installed. This suit was withdrawn by Respondent No, 1 with a permission to file a fresh one on 28.6.1993 and in this suit application was moved under Order 26 Rule 9 CPC for appointment of Local Commission and during pendency of the suit, another Local Commission was appointed who also after demarcating the land in dispute opined against the petitioner.
7. Section 117 of the West Pakistan Land Revenue Act, 1967 empowers a Revenue Officer for the purpose of framing any record or making any assessment on the application of any person interested, define the limits of the estate, or of any holding, field or other portion of an estate, and may, for the purpose of indicating those limits, require boundary marks to be erected or repaired.
8. The powers under Section 117 of 'the Land Revenue Act for demarcation proceedings are unlimited and unfettered as observed by a Member, Board of Revenue in the cases of Sheikh Abdul Ghafoor and others vs. Faqir Muhammad (1992 CLC 586) and Tahir Hanif vs. Member, Board of Revenue and others (1982 CLC 1732). The honourable Judge of this Court has observed that 'Revenue Officer for purpose of preparation of records or assessment of a case, may on his own motion or on application of interested person, demarcate boundaries of an estate.
9. From the plane reading of the provision. of Section 117 and the dictum laid down in the above- referred cases, it is manifestly clear that the revenue officer is empowered and competent to make demarcation of the estate and the land. Meaning thereby that demarcation of the estate/land or holding can be made by the Revenue Officer.
10. Estate has been defined in Section 4 sub-section (9) as under :- (i)for which a separate record of rights has been made, or (ii)which has been separately assessed to land revenue; or (iii)which the Board of Revenue may, be general rule or special order, declare to be an estate; Sub-section (10) of Section 4 further defines "Holding" means a share of portion of an estate held by one, land owner or jointly by two or more land owners. "LAND" means land which is not occupied as the site of a town, village, factory or industrial establishment, and is occupied or has been or can be let for agricultural purposes allied or subservient to agriculture and includes the sites of buildings and other structures on such land.
11. Section 175 of the West Pakistan Land Revenue Act, 1967 empowers a Revenue Officer to remove the encroachment from the land which was reserved for the common purposes. Rule 67-A of the West Pakistan Land Revenue Rules, 1968 further strengthens the argument that the demarcation powers can be exercised by the Revenue Officer with regard to limits of estate, a holding field or any portion thereof. The said rule envisages the demarcation of land on an application U/S. 117 for defining the limits of an estate, a holding field or any portion thereof shall contain the following particulars:-- "It means that the powers are only available to the revenue officer with regard to the estate or holding which is the agricultural property and if the nature of land is altered long before action is taken under Section 117 ibid which is not applicable as laid down in the case of Amir Bibi vs. Dheru and another (AIR 1927 Lahore 615)."
12. In the order dated 27.1.1988 the Deputy Commissioner/ Collector Gujranwala on the application of Muhammad Yunus son of Muhammad Ismaeel for restoration of the common path through Khasra Number 864 has already observed that from examination of the record it is proved that the construction had been made at site and the matter being intricate question of law and facts the application of Section 175 of the Punjab Land Revenue Act is not attracted and the applicant Muhammad Yunus was directed to approach the Civil Court. This order of the Collector was confirmed by the Commissioner, Gujranwala Division vide, his order dated 16.10.1988 (wrongly typed as 16.10.1987) and after perusal of above-mentioned two orders passed by the revenue officers it is established and the that the property i,e, Khasra No, 864 has ceased to be an estate or holding and the said land had changed its character as a building had been constructed on the said property.
13.This Court in case of Pervez Ahmad Khan Burki and 3 others vs. Assistant Commissioner, Lahore Cantt. and 2 others (PLD 1999 Lahore 31) has also observed as under:- "Area sought to be demarcated by Authority was built upon since long and formed part of bungalow bearing property number and did not form of revenue estate--Section 3, West Pakistan Land Revenue Act, 1967 provided that except for certain fiscal purposes nothing in the said Act would apply to land which was occupied as a building site or such land on which permanent structure had been raised because such land after raising structure thereon, would loose also characteristics of agricultural land and dispute as regard partition of such land had to be resolved through Civil. Court and not by Revenue Court."
14. The above legal aspect of the case has not been, attended to by. Respondents Nos, 2 and 3.
This Court will not sit as a Court of appeal on a decision, judgment of Court, Special Tribunal in exercise of its Constitutional jurisdiction, where the Special forum misconstrued the provision of law or passed the decision contrary to the settled proposition of law and based its judgment/decision on non-consideration of material evidence on record or exceeds the jurisdiction or committed a gross error of law or fact, this Court can correct that mistake as laid down in the case of Mst. Amina Begum vs. Sheikh Muhammad Nazir and others (PLD 1985 Supreme Court 260).
15.For the foregoing reasons and following the dictum in the cases (supra), this writ petition is accepted the impugned orders dated 13.12.1995, 7.10.1995 and 14.6.1999 passed by Respondents Nos, 2 and 3 respectively are declared to have been passed illegally, without jurisdiction and of no legal effect. There shall be no order as to costs.