2010 PLP 5 (YLR)

FAZAL-E-MIRAN CHAUHAN, J.

By filing the instant writ petition, the petitioner has prayed that, he is lawful owner of residential house measuring 5-marlas, and the respondent be directed to provide Fard for the purpose of alienation of said house.

2. Briefly the facts of the case are that, petitioner purchased residential house, built on plot measuring 5-marlas, vide document bearing No.6932, Jild No.4382, Bahi No.1, dated 11-8-1966. The sale-deed was duly registered with Sub-Registrar, Lahore; Mutation No.1708 was recorded on 30-9-1966. Petitioner wanted to transfer the house to his grandson. He approached Revenue Halqa Patwari (respondent No.2), for issuance of Fard Bay and copy of register Haqdarn-e-Zamin of the house/ land. Respondent No.2 refused to issue Fard on the pretext that, entry of Mutation, No.1708, dated 30-9-1966 has not been entered in the Revenue Record; register Haqdaran-e-Zamin shows that, the petitioner is owner of the property, in question. No action was taken by respondent No.1 (Tehsildar Lahore, Cantt.) on the application of the petitioner, hence, this writ petition.

3. It is argued by learned counsel for the petitioner that, under the Land Revenue laws, the Patwari of Halqa, after sanctioning of Mutation No.1708, on 30-9-1966 was duty bound to enter the change of ownership in the Revenue document. Further submits that, Sub-Registrar, Nishtar Town, Lahore (respondent No.3) refused to register the gift deed on the pretext that, Fard (Record of Rights) showing the petitioner to be owner of this land underneath house is not annexed. Further argued that, in presence of a registered sale-deed, a title document, demand of respondent No.3 to produce Fard Bay of the property is unwarranted, illegal and against the law.

4. I have heard learned counsel for the parties and perused the record.

5. Report and parawise continents submitted by the Deputy District Officer (Registration), Nishter Town, Lahore (respondent No.3) are vague and amounts to evasive denial of the para. on facts of the writ petition. Patwari of said Halqa was summoned with record, who appeared on20-4-2009 and stated, that Mutation No.1708 was recorded and attested on 30-9-1966, but this fact of change was not incorporated in the record-of-rights by the then Patwari. He had failed to give any explanation as to why same had not been incorporated by him and now having come to know about the same, on the application of the petitioner, said Patwari sought time to record the change of ownership in the record-of-rights and to produce a copy of the same. Today, he appeared with a copy of record-of-rights for the year 1981-1982, where Roshan Din has been recorded as owner of 5 marlas in Khasra No.4095. In column No.10, it is corded that, Fard is being issued as (ﺍﻠﻐﺮﺾﺒﻴﻊﺳﮑﻨﻰ). Original of the said document has been handed over to the petitioner and photocopy whereof has been placed on the record.

6. Before parting with this order, I would like to observe that, the Sub-Registrars and Patwaris have developed a strange practice of demand of certified copy of Fard for Bay (6-) and this demand of the Sub-Registrars before registering a document, vide which, change of ownership by way of mortgage, gift, sale or exchange had taken place. Certified copy of record -of-rights as demanded by Patwaris for Bay and on this demand of the Sub-Registrars, Patwaris of the concerned Halqas starting blackmailing the owners for issuance of Fard and demanded heavy amount for the same. This is the example of one of those cases. As per petitioner, the Patwari demanded heavy amount before recording the change of ownership in the record-of rights and for issuance of said Fard.

7. Section 42 of the Land Revenue Act, 1967 deals with any person acquiring by inheritance, purchase, mortgage, gift, or otherwise, any right in an estate as a landowner, or a tenant for a fixed term exceeding one year, shall, within three months from the date of such acquisition, report, his acquisition or right to the Patwari of the estate who shall:-- (a) record such report in the Roznamcha to be maintained in the prescribed manner; (b) furnish a copy of the report so recorded, free of cost, to the person making the report; and (c) send a copy of the report, within a week of its receipt by him, to the Union Committee, Town Committee or Union Council within which the estate is situated. As per subsection (3) of section 42 of the Land Revenue Act, 1967, the Patwari shall enter in his register of mutations every report made to him under subsection (1) or subsection (2), and shall also make an entry in the Roznamcha and in the register of mutations respecting the acquisition of any such right as aforesaid which he has reason to believe to have taken place, and of which report should have been made to him under either of those subsections is and has not been so made. Subsection (5) of section 42 gives right of any such person to apply to the Patwari for recording the change of ownership. Under subsection (1) or subsection (2) of section 42, if the Patwari fails to record a report made to him by the person making the report may make the report, in writing, to the Revenue Officer concerned and the Chairman of the Union Committee, Town Committee or Union Council in which the estate is situated, by registered post acknowledgment due and the Revenue Officer shall thereupon cause such report to be entered in the register of mutations. Similarly, section 3.17 of Chapter-3 of the Land Records Manual says that, during the first 4 working days of the month, the field Kanungos and Patwaris shall remain present at Tehsil Office to facilitate: (a) disposal of periodical returns and reports, etc; (b) supply of copies of Patwari's records to the public; (c) entry of mutation; (b) attendance in the Revenue Offices/ Courts at Tehsil Head-quarters; and (e) payment of emoluments and allowances to them. The Patwari shall bring with his Roznamcha Waqiati and latest copies of record-of-rights/periodical record, Register Girdawari, Register Taghayyurat-e-Kasht, Dhal Bachh and Register of Mutations of the estates under his charge. Section 3.48 of Chapter-3 of the Land Records Manual provide a procedure for inspection of record of Patwaris and grant of certified copies or extracts there from:- (1) The Partwari shall allow anyone interested to inspect his records and to take notes. therefrom, in pencil, in his presence, during office hours, on all working days. He shall give to the applicants certified copies or extracts therefrom, and enter in his diary a note of the inspections allowed and copies or extracts, given. (2) Such copies or extracts shall be given by the Patwari, to the appellant, within three days from the receipt of the application. (3) The charges shall be made, as detained in the Schedule in Appendix B. According to the Land Records Manual, procedure for supply of Revenue Record in a possession is provided in note (C) to Appendix B of section 3.48 and as per this note, for the purposes of supply of copies of the Revenue Records in possession of the Patwari, the Tehsil Office Kanugo shall maintain a register, for recording

(i) the date of receipt of the application; (ii) the name of applicant; (iii) the nature of record of which copy is desired; (iv) the date given on the application for receipt of the copies; (v) the date on which the copies were actually delivered to the applicant; (vi) amount of fee realized; and (vii) remarks.

8. Here in this case, mutation was sanctioned in the year, 1966 and application for incorporation in the record-of-rights was moved and the then Patwari of the Halqa did not incorporate the same in accordance with law. Now, the present Patwari, to whom application was moved, again refused to do his job in accordance with law and forced the petitioner to come to this Court for the redressal of his grievance. On summoning the Patwari Halqa, he could not give any explanation for not recording the mutation in the Revenue Record and seeks 15 days time to do the same. Today, he brought copy of record of rights, wherein change has been incorporated. The working of Revenue Authorities, particularly, shows that, whole of the Revenue staff and authorities are not performing their duties in accordance with law and the landowners and interested persons, who require copy of record-of rights or of mutation or of Khasra Girdawari are being coerced by the Patwaris and they are forced to meet the heavy demands of the Patwaris for getting their job done, whereas, in the Land Records Manual, it is mentioned that, Halqa Patwari on receiving fee, is bound to furnish copy of the same to the same person. When asked, learned Additional Advocate-General, as well as, Revenue Officer, present in Court, failed to answer the query that, what is meant by Fard Bay and the same is being demanded by the Registration Authorities. On this, learned Additional Advocate-General states that, he has asked Sub-Registrar to appear today. He was present in the Court and he also failed to explain why the certified copy of record-of-rights is demanded with specific note of "Fard Bay" and no injunction or stay order has been granted on the sale of the property. Sub-Registrar (respondent No.3), present in the Court, submits that, the law does not require a person, who has submitted his sale-deed, exchange, gift or mortgage deed for registration to produce such documents; however, submits that, this is being done as precaution, because now-a-days, land-owners commit fraud by executing sale-deeds to the different persons at a time and to curb this fraud, certified copy of record-of-rights is demanded with a specific note and such certified copy is issued by the Patwari, only to the person, who is real owner in the estate.

9. Be that as it may, law does not require that, the person, who has submitted his document for registration of the sale deed, mortgage deed, gift and exchange to provide any such document with specific note. When the law does require a thing to be done in a particular manner. Public functionaries are required to do the same as required under the law. There are no instructions or order issued by the Board of Revenue in that regard, thus, the demand of Sub-Registrar for production of any such Fard Bay with specific note is uncalled for and against law. The Sub-Registrars are directed to verify the ownership of the person, who intends to transfer the property by way of gift, sale-deed, mortgage, by securing the Revenue Record, which shall be produced before him from the record room for his inspection and he, after verifying the ownership of the person, shall proceed with and register the document.

10. Leaving the persons at the mercy of Patwaris, who now-a-days are demanding huge exorbitant amount illegally from the interested persons, keeping in view the market price of the land and this was taken place due to the illegal demand of "Fard Bay", made by the Registration Authorities, facilitating the Patwaris to extract heavy amount from or the transferees the transferors.

11. For what has been discussed above through this order, all the Sub-Registrars are directed not to demand certified copy of record of rights illegally with a specific note of "Fard Bay". They should verify; ownership of the person from the concerned Revenue Record, maintained in the record room, by summoning the same before endorsing the document and registration of the same. This writ petition is allowed. There is no order as to costs. Copy of this judgment shall be circulated to all the Sub-Registrars in the districts, to comply with the directions. H.B.T./R-74/L Revision allowed.