2012 PLP 1803 (CLC)

DR. ALLAH BAKHSH MALIK (MEMBER (JUDICIAL-VIII)).

The instant Appeal bearing ROR No.2141 of 2011 assails the orders of the learned Additional Commissioner (Revenue) Rawalpindi dated 11-8-2011. It has been prayed that the orders of the learned Deputy District Officer (Revenue) dated 22-6-2010 may be upheld.

2. The brief facts of the case are that Mutation No.2016 dated 30-6-2009 was sanctioned in favour of respondent No.2. Aggrieved by the Mutation proceedings, an appeal was filed before learned Deputy District Officer (Revenue) on 30-6-2009 and the latter passed an order on 22-6-2010. An appeal against the orders of learned Deputy District Officer (Revenue) was filed before the learned Additional Commissioner (Revenue) Rawalpindi and the same was accepted vide order dated 11-8-2011.

3. I have carefully perused the orders of the learned lower courts. It has been observed that Mutation No.2016 was attested on 30-6-2009. Muhammad Rafique being owner of 146/613 share out of 19 Kanals, 6 Marlas from Khewat No. 365 sold out the land. The attestation of Mutation to the extent of one's own share is justified. The sale of share out of Shamilat is uncalled, unwarranted and unjustified. The Shamilat Land of village Jamroat Khalan Tehsil Gujar Khan is meant for the future community requirements of the villagers. The Shamilat land is meant for the use of common welfare and amelioration i.e. Schools, Colleges, graveyard, funeral rites, grazing, and Community Centres. The present generation is custodian of the Shamilat Land and must pass on to the next generation, ensuring sustainability. With the passage of time and population pressure, there is increasing demand for land especially for housing purposes. Qabza Mafia from village level to the national level have started showing their ugly face and have joined hands with the redistributive coalition to grab State land and forcefully occupy the land of the poor and disenfranchised. Eventually the Revenue Authorities and State Machinery in collusion with the powerful Qabza Mafia have started occupying the lands even reserved for Shamilat Deh.

4. As a matter of fact, the land in Shamilat Deh is not only the ownership of the villagers living in that village but also the ownership of the coming generations following in succession. The misuse, sale and illegal occupancy will deprive the future generations of their due inheritance and societal rights. Section 136 of The Land Revenue Act, 1967 clearly imposes restriction and limitation on the partition of Shamilat land. In the instant case, while attesting the Mutation of Shamilat Deh, all co-sharers have not been consulted, which is mandatory. It was incumbent upon the Revenue Officer to summon all interested parties and stakeholders for consultation, before attestation of such Mutation. It has been held in 1985 CLC 796 that partition sanctioned without consulting a large number of co-sharers is not justified. It has also been held in 2003 SCMR 1857 that partition of Shamilat Land should be made on the basis of Shart Wajib-ul-Arz and not on the basis of Misl-e-haqiat.

5. The Wajab-ul-Arz of villages was drawn at a time when the land was generally used for pastures. With the population pressure and sub-division of land holdings resulting in smaller shares, the Shamilat Land has become the centre of attention. It is high time that we must exercise great care while handling Shamilat Deh. If the sale of Shamilat Deh is not checked, there is every probability that soon the village will be deprived of the Shamilat Land.

6. In the instant case Muhammad Rafique mentioned as owner in Khewat No.365 sold his 146/13 share out of 19 Kanals and 6 Marlas. The sale of share out of Shamilat in the said Khewat is not understandable since his share in Shamilat land cannot be equal to his share in the ownership in other Khewats of the same village. The village has a Shamilat Land of 5933 Kanals 4 Marlas in Khewat No.717. There is also a possibility that an owner in the village may sell his share from Shamilat Land again and again.

7. Keeping in view the public interest and to protect the interest of our future generations, Mutation No.2016 dated 30-6-2009 is cancelled. The Mutation or sale of Shamilat Land is restricted. In future the owners of land in a village are entitled and at liberty to sell their share but spare the Shamilat Land for common use and Community welfare. The Land-usage of Shamilat Land described in Wajib-ul-Arz shall not be changed under any circumstances. The Shamilat Land should be preserved and protected not only for the positive externalities of the villages to accommodate the ever-increasing incessant needs of the growing population but also for millions of people, yet to come to this world. Misuse and sale of Shamilat Land will deprive the future generations of their vested rights. The conscientious understanding of the principles of sustainability demand that the present generation should at least, maintain or preserve the social belongings and community assets, they have inherited from the previous generations. As a matter of fact, they shall leave the public assets of common use in a better form for the successors in time than the state of assets at the time of inheritance of the present generation. The decision of the learned Deputy District Officer Revenue is upheld. Tehsildar Gujar Khan is directed to incorporate the judgment in the Revenue Record. The Case File shall be consigned to the Record Room after completion of all the prescribed codal formalities. HBT/4/Rev. Revision allowed.