P L D 1972 (Rev (PLP)

Ashraf Khan and Mohammad Mara, S. No. 106/1 sold by claimant on 6‑11‑1967 to Abdul Rehman, cousin of Ghulam Kadir. 91/3 Ashia Bibi. 91/4 (2‑16 acres) 1.16 acres allotted to Dulia and 1.00 acre in the name of Central Government. Dulia sold his share to Ghulam Kadir on 12‑1‑1968. (ii) Since the S. Nos. did not belong to Ghulam Kadir during 1966‑67, the question of remokal action against Ghulam Kadir does not arise. (iii) According to khasra girdawari, S. Nos. 91/3, 4 and 106/1, 2 were shown as uncultivated during kharif and rabi 1966‑

67. Partal of S. Nos. 91/3, 4 was also checked by the S. T. of the beat. Had there been any non‑agricultural use of the land during the year 1966‑67 mention thereof should have been male in the khasra girdawari as is required by rules and as was actually done in respect of S. No. 106/3, where brick kiln was shown to have been constructed in an area of 1.0 acre in khasra girdawari during 1966‑67. (iv) The penal action in respect of year 1966‑67 on S. Nos. 106/1, 2 and 91/3, 4 is not, therefore, maintainable firstly because the S. Nos. did not stand in the name of Ghulam Kadir during the year 1966‑67 in the revenue record and secondly the non‑agricultural use of the S. Nos. is not establish ed by entries in khasra girdawari. (b) Penal action for raising constructions in S. Nos. 91/3 and 4 and 106/1 and 2 for 1967‑

68. According to the report No. 3236 dated 26‑9‑1968 of Mukhtiarkar, Nawabshah, addressed to the Additional Com missioner, Khairpur, the position of the S. Nos. was as under even on 21‑9‑1968 when the Mukhtiarkar visited the site in compliance with the orders of Additional Commissioner, Khairpur. Area under construction 1.21 acres. Ploughed area 4.01 acres. Area cultivated with Juwar 2.00 acres. Open space. 4.36 acres. _____________ Total 12.18 acres. ______________ Ghulam Kadir was penalized for the entire area of 12.18 acres and the Mukhtiarkar has explained this by stating that the entire area within the compound wall of Ginning Factory will be considered to have been used for non‑agricultural purposes. I, however, do not agree with the view that fine in respect of the entire area is invariably to be imposed even if an enclosure for non‑agricultural purposes is constructed but the entire land is not used for non‑agricultural purposes. Mere enclosure of agricultural area by a wall cannot by itself determine the purpose for which the area inside it could be utilized and each case has to be examined on its own merits. It is always is very legitimate to construct a wall for the sake of cattle farming and garden and the agricultural use of land inside it is not affected by such an enclosure. In the present case even though there was an enclosure yet 4.1 acres were ploughed and 2.0 acres were actually cultivated with Juwar and as such it cannot be said that all the lands within the enclosure were converted to non‑agricultural use by that time and as such penalty for the entire area would be unjustified. (c) Penal action for brick kiln for S. No. 106/3 for 1967‑

68. Ghulam Kadir has been penalized to the extent of Rs. 1,075.23 for erecting brick kiln unauthorisedly in 1.00 acre out of S. No. 106/3 during 1967‑

68. According to the record of P. W. D., the brick kiln existed in an area of 5 ghuntas only. The counsel for the petitioners has also conceded that the brick kiln existed in the S. No. to that extent. As discussed above, the instructions for show‑cause notice were not followed and the disregard of these instructions show that Ghulam Kadir had not been given fair chance to defend his cases Normally in such cases of infringement of instructions of Board of Revenue the case should have been remanded for fresh enquiry but as this case is old one, no useful purpose would be served in ordering a fresh enquiry. The idea behind these instructions is that no injustice is done and the party has adequate opportunity to explain his case and question facts if~ these are wrong. In this case formality of issue and service, of show‑cause notice only seems to have been gone into but the notices have not been served on the defaulter. There is now dispute only about the area under the kiln. The petitioners assert that it was in an area of 0.5 ghuntas only while the revenue record shows that it was in one acre and according to the record of P.W.D., brick kiln was in area of 0.5 acres. Since the party has been deprived of opportunity to defend its case the least that can be done in this case is to accept the figure, which is in his favour and impose fine for brick kiln in respect of 0.5 acres only.

10. In view of the above observations, I accept the revision petition to the following extent :‑ (i) No fine should be levied for S. Nos. 106/1 and 2 and 91/3 and 4 for the year 1966‑67 in respect of the brick kiln. (ii) Penal action may be taken for an area of 1.21 acres only as enumerated in report No. 3236 dated 26‑9‑1968 of Mukhtiar kar, Nawabshah for the year, 1967‑68. (iii) The fine for S. No. 106/3 for brick kiln for 1967‑68 should be levied in respect of an area of 0.5 acres only.

11. The explanation of the Mukhtiarkar concerned should be called for as to why he ignored the instructions of the Board of Revenue to the detriment of the petitioners and submitted for further necessary action. Petition accepted.