1983 PLP 27 (CLC)

12. The record shows that in 1:886 two Notifications bearing kilos. 127 and 129 both dated 17-2-1886 were issued by the Government of Punjab (N.-W. F. P. was then a part of Punjab). In the first mentioned Notification, C the Municipal limits of Peshawar City were specified and for the purpose of the present case the relevant extract may be ,given from the said Notification:- "Name of Place Boundaries Peshawar in the North partly Cantonment Land and Fort and Peshawar District. partly stream known as Sheikh-Kakatha between the Shabqadar and Hashtnagri Roads. South and East the Road known the outer Circular Road which branches off from the Grand Trunk Road to the East of the City near Burj Nehanagan, and running to South turns towards West through Peach Gardens to the Kohat Road."

13. In the second mentioned Notification, the places excluded from the control of Municipal Committee were given and for the purpose of the present case the following extract may also be given from this Notification:- "Outer Circular Road. North by Ziarat Pir Ghaib and Nisatta Road, South by Cattle Market, and Grand Trunk, East by Railway Line and West by Railway Station.

14. I have already given the necessary particulars in the above map drawn by me above in para. 9 of this judgment. The learned counsel for the land owners contends that the above two Notifications specify two separate Roads viz., Hashtnagri Road in the first mentioned Notification and Nisatta Road in the second mentioned Notification, therefore, according to him, Hashtnagri Road is the Road starting from Shabqadar Road at Octroi Post in the North and after crossing Nisatta Road, Railway Line and G. T. Road terminates at Hashtnagri Gate. Thus according to the learned counsel a third Road by the name of Hashtnagri Road in-between Shabqadar Road and Nisatta Road is established and as the properties of his clients are situated in-between Hashtnagri Road and Nisatta Road, it is clear that their said properties ate not situated within the Municipal limits and as such the same are precluded from the purview of the West Pakistan Urban Immovable Property Tax Act, 1958.

15. The learned counsel for the landowners also relied upon the evidence of the witnesses produced by his clients. He submitted that almost all these witnesses were officials and as they had spoken on the basis of the official record in support of the version of his clients, the learned Additional District Judge should not have disregarded their evidence.

16. At this stage, it is relevant to make reference to the evidence of the witnesses produced by the land owners at the trial Court. P. W. Muhammad Yusaf, an official from the Commissioner's Office produced the report of the enquiry conducted by the Additional Commissioner to show that in the said report the Additional Commissioner had cone to the conclusion that the properties in the present case are situated beyond the limits of the Municipal Committee. P. W. Abdul Hamid, Draftsman in the Municipal Committee also supported the case of the landowners. P. W. Shamsul Haq, Surveyor, produced his report submitted by him to the Additional Commissioner to show that according to the witness the properties in the present case were outside the limits of the Municipal Committee. P. W. Aurangzab, Secretary Union Council also supported the ease of the land owners. P. W. Sikandar Khan, Excise and Taxation Officer, produced an order of his Deptt: and also a Certificate issued by the Draftsman Municipal Committee to the effect that "area in question is beyond the Municipal limits." P. W. Muhammad Akhtar Moharrir of the District Council produced Assessment Register to show that the respondent/ Karimi Industries Limited in R. F. A. No. 24/72 was assessed to professional tax as the same, according to him, was beyond the limits of the Municipal Committee. In the course of his statement, he made a commitment that he would bring the plan and the other relevant files to show that as a matter of official record, Karimi Industries Ltd; was beyond the limits of Municipal Committee. Vide order dated 29-4-1965, he was directed to produce the said documents. However, in compliance with this direction and fulfilment of his commitment, he never appeared before the Court to prove his claim. As his claim was considered a determining factor for the resolution of the, controversy in the present case, I called him as a Court witness in the present proceedings and recorded his statement. He did not substantiate his claim on the basis of any official record. I will discuss his statement recorded by me in Court at an appropriate stage.

17. The learned counsel for the Government on the other hand, contended that the testimony of the witnesses produced by the plaintiffs is not sufficient to show that the road marked 'A' with red ink is or was Hashtnagri Road. He submitted that the documentary evidence relied upon by the learned counsel for the plaintiffs/landowners is also not a conclusive proof in that behalf. He stated that the landowners in the present case, when they were required to pay tax for their properties under the West Pakistan Urban Immovable Property Tax Act. 1958, approached the authorities that as their properties are outside the Municipal limits, they are not liable to pay tax under the Act. That the matter was thoroughly examined in the light of the Notifications and other relevant official data and material and as the third Road designated by the landowners as Hashtnagri Road for their benefit was not found to have ever been in existence, the authorities were obliged to hold that Hashtnagri Road, was that Road presently called Dalazak Road and previously Nisatta Road. The learned counsel referred to the order dated 25-7-62 passed in revision by Nawabzada Sher Afzal Khan, the then Commissioner Peshawar Division, and submitted that the learned Commissioner after inspecting the spot came to the conclusion that the entire land situated between two roads was in fact covered by Notification No. 127, as only in that case the part of the Katta could be covered as mentioned in the Notification. He added that in this view, the two Roads could only by Shabqadar Road and the present Dalazak Road previously known Nisatta Road as well as Hashtnagri Road in-between which the lands of the landowners are situated. The learned counsel pointed out that the documents produced by the witnesses which the learned counsel for the appellants has described as official record are not statutory or judicial instruments, but these relate to the dispute in the present case. He submitted that when the landowners were required to pay tax in the present case under the Act, they agitated the matter before the authorities that their lands are not situated within the Municipality. It was in these circumstances that the above documents came into being which, according to the learned counsel, will have to be looked into for proper decision in the present judicial proceedings.

18. I have heard the learned counsel for the parties on various dates. In the course of arguments they submitted that unless a Commission of experienced persons is appointed to physically check the spot regarding fixation of the Roads from Peshawar to the North-West and Western side from Hashtnagri, as mentioned in the various Notifications issued right from 1856, and go through the gazetteers, Peshawar History, Original Maps and Revenue Record and finally submit report to the Court, they will not be in position to further argue the case. The learned counsel for the parties agreed to the appointment of Mr. Muhammad Ishaq Khan, the then Registrar of this Court and Mr. Muhammad Ibrahim Khan, a retired Tehsildar for the purpose. Therefore, by my order dated 13-6-1979, I appointed the two gentlemen as Commissioners with direction to look into the matter and submit a report.

19. The learned Commissioners after doing the needful submitted their report on 27-2-79 (Exh. C. W. 2/1). I have gone through this report. According to the Commissioners the third Road in between Shabqadar Road and the present Dalazak Road is Hashtnagri Road, I do not consider that this report is based on positive and imperative date and material emanating from valid official source, because in support of their conclusion the learned Commissioners have not referred to any official map or other documents in which it is pin-pointed that this very third official Road has been officially declared as Hashtnagri Road. Thus I consider that their opinion or conclusion is no more than their mere guess and supposition.

20. I have also already referred to the evidence of P. W. Muhammad Akhtar, who in the course of his examination in the trial Court laid a claim that in the North near Octroi Post Hashtnagri Road has emerged from Shabqadar Road and after crossing Dalazak Road and Railway line the same road terminates at or goes into Hashtnagri Gate and that in that behalf he can produce map and other relevant official record to establish his claim. But he never made a visit again to the Court to reinforce his claim to the satisfaction of the Court, As I considered his claim a crucial factor for the resolution of the dispute between the parties, I called him as Court witnesses. I recorded his statement on 16-12-81 in the presence of the learned counsel for the parties. In cross-examination he seems to have resiled from his claim as he stated that "I cannot say whether any plan or the concerned file asked for ever exists in the office, and similarly the files of the dispute between the District Council and the Municipal Committee".. His whole statement recorded in Court may be reproduced to show that he is not a witness of credit whose evidence should be taken into account: "In the year 1965 I was Moharrir Paisha Tax (Professional Tax) District Council, Peshawar. I was examined in the Court of Senior Civil Judge, Peshawar on 29-4-1965. My statement is read out to me. During the cross-examination I was directed to bring the plan and the relevant files. However, 1 never appeared thereafter before the Court. At the time of recording of my statement on 29-4-65, I produced the Assessment Register of Professional Tax and I had correctly stated that the District Council or the District Board could not impose tax within the limits of Municipal Committee Peshawar. I had also stated that Karimi Industries was assessed to tax at the rate of Rs.40, per annum according to the assessment Register produced by me before the Court. I had not brought the map showing the limits of the District Board, because I had not been told to do so. I had also correctly mentioned in my examination-in-chief that at a place situated towards the City side of the Karimi Industries a Cattle Fair used to be held under the management of the District Council. It is further stated by me that previously that Cattle Fare was to be managed by the Municipal Committee but a dispute arose between the Municipal Committee and the District Council about their right over the Cattle Fair ground, and according to my statement a decision was made in favour of the District Council by the Commissioner at that time. Since then the District Council is managing the Fair and realizing the -lease money from the Cattle Fair Market. In response to a question, my answer was not based on any official document but was my guess, which I verbally stated that there was a dispute between the District Council and the Municipal Committee. I had not brought the record though I dealt with the case at that time. The plan and the relevant file as directed to me, on 29-4-1965 to produce before the Court are not available in the office. I made a thorough search in the office but did not recover the same. . . . . I cannot say whether any plan or the concerned file asked for over exists in the office, and similarly the files of the dispute between the District Council and the Municipal Committee."

21. Thus P. W. Muhammad Akbar just as all other official witnesses produced by the plaintiffs/landowners were unable to prove that the Road in question exists in any official map/ plan or its location is explained and pointed out with precision and beyond confusion and ambiguity in any other official record.

22. The above being the position it is obvious that the Road no called Dalazak Road was previously known as Nisatta-Mardan Road as well as Hashtnagri Road, as given in Notification Nos. 127 and 129 issued in 1886. I have already given the relevant extract from Notification No.

127. I have also drawn a map in para. 9 of this judgment to show the location of the Roads. So far as Shabqadar Road is concerned its location is no disputed. In the Notification No. 127, it is stated that Municipal limits are covered by a stream known as Sheikh Kakatta between Shabqadar Road and Hashtnagari Road in the North of Peshawar.

23. In the absence of any third Road on any official map or in other official document showing and explaining precisely the said Road, it is clear that Hashtnagri Road is that Road now called Dalazak Road and previously known as Nisatta Road, the moreso as by looking at the map given by me in this judgment this Road almost lay in the North of Peshawar. Geogra phically, there is also no escape from this conclusion. We will again refer to Notification No. 127 to limelight this point. In the said Notification Municipal limits are shown to be partly convered by Sheikh Kakatta in between Shabqadar Road and Hashtnagri Road. There is no third Road in between which and Shabqadar Road, it can be shown that some area of land is covered by Sheikh Kakatta. The so-called third Road which is claimed by the landowners as Hashtnagri Road emerges from Shabqadar Road near Octroi Post and a bridge on Sheikh Kakatta. A look at the map given in this judgment will exclude the claim of the landowners in the present case that any area of land is situated in-between this third Road and Shabqadar Road covered by Sheikh Kakatta. ' Shabqadar Road crosses Sheikh Kakatta in the East of Peshawar and it is thereafter that the third Road in question shoots from Shabqadar Road near Octroi Post and after crossing Shabi Bagh and Government College to the West of the said Road as well as the present Dalazak Road and Railway line terminates at or goes into Hashtnagri Gate. The point from which this third Road emerges from Shabqadar Road makes an angle and not a small part in between these two Roads is covered by Sheikh Kakatta. The following sketch will illustrates the position to leave no manner of doubt in one's mind:

24. Thus as not a small part in-between Shabqadur Road and the third Road is covered by Sheikh Kakatta, the claim of the landowners that the third Road in question is Hashtnagri Road has no leg to stand upon and con sequently, as I have already held above, Hashtnagri Road is that Road now called Dalazak Road and previously known as Nisatta Road.

25. It would seem that the present Dalazak Road was previously known as Nisatta Road as well as Hasbtnagri Road has behind it a historical perspective and background. The learned Additional District Judge has attended to this aspect of she case in his judgment and the relevant portion therefrom may be reproduced.- "It was contended by the learned counsel for the appellant that the land in suit was within the limits of the Municipal Committee of Peshawar and the learned Court had fallen into error in holding to the contrary. In this regard the learned counsel mainly relied on the Notification No. 127 issued by the Governor on 17-2-1886. By this notification the Octroi limits of the Peshawar Municipality were extended to include the area bounded by parts of Peshawar Cantonment, the fort and part of the stream called Sheikh Kakatta between the Shabqadar and Hashtnagri Roads in the north and the outer circular road on east. and south and the Kohat Road and the Cantt; lands on the west. There is no dispute so far as the Shabqadar Road is concerned. There is also no dispute with regard to the stream Sheikh Kakatta, because it is running at the same place where it was running at the time when Notification No. 127 aforesaid was issued. There is a dispute only in regard to the road mentioned as Hashtnagri Road in the Notification. It is contended by the learned counsel for the appellant that this road join the Sheikh Kakatta at a point leaving he land in dispute to its south. If this contention prevails, then the land in dispute lies within the limits of Peshawar Municipality and is liable to be tax-burdened with the Urban Immovable Property Tax. The point for consideration therefore is whether the Hashtnagri road is the one as contended by the counsel for the appellant or is the one which starts from the Hashtnagri gate and joins the Shabqadar road at a point south of Sheikh Kakatta. This road started, according to the record of Municipality from the Hasbtnagri gate and proceeded towards the area known as Hashtnagri, passing through Dalazak and other villages. It provided the shortest route to the area of Hashtnagri and was therefore called Hashtnagri Road. Similarly the Hashtnagri gate was named as such because it was at a place facing Hashtnagar. It could never be the road which ultimately merged with the road known as Shabqadar Road, which was longer and more circuitours and could not have been followed by the people going to Hashtriagar in the days when travelling was difficult and journey was performed on foot and on horse-back. The road connecting Hashtnagri gate with the Shabqadar Road south of Sheikh Kakatta was very small in length and could not have been named as Hashtnagri Road. This was certainly not the Hashtnagri Road, because it did not go straight to Hashtnagar and terminated at a short distance. The Hashtnagri Road was the road which provided direct link between the Hashtnagri gate and the area of Hashtnaear. It took off from the Hashtnagri gate and passing by the City Railway Station, Dalazak and other villages terminated in the area of Hashtnagar. This road is not called Dalazak Road and to the south of it lies the area in dispute. The Commissioner of Peshawar Division visited the area in connection with a revision petition involving a similar dispute and held vide order dated 25-7-1962, copy Exh. D. W. 1/1, to the same effect. The report of the Chief Engineer of the Municipality, copy of Exh. D. X/4, is also on the same line. The Notification No. 129, dated 17-2-1886, copy Exh. P. W. 112 and the Notification No. 5726 LF/XXI D-537 dated 21-7-1944, copy Exh. D. X/3 issued by the Governor also point in the same direction. The observation of the trial Judge made as a result of his own spot inspection do not seem to be founded on sound basis. The abadi of the Mahal Jhalarian is outside the limits of the Municipality but not the area in dispute. 'Therefore, I hold that the area lies within the Octroi limits of the Peshawar' Municipality and is liable to be taxed under the Urban Immovable Property Tax Act and the finding of the learned trial Court which is to the contrary is negatived."

26. In olden days, when it was not machinery age and the medium: of journey was either on foot or on riding animals or at the most in carts or in Tongas, people used to adopt the shortest route towards their destination. It is a matter of History that in order to come to Peshawar, the present Dalazak Road, being the shortest route, was a traditional route for the people of Nissata and Hashtnagar. This route was a road of one line connecting Peshawar, Hashtnagar, Nisatta and Mardan and the evidence is that traces and reminiscences in the shape of worn age-old road still exist. Two boats bridges on the two Kabul Rivers laying in way from Nisattai Hashtnagar to Peshawar were then, in existence. As a matter of fact, the read presently called Dalazak Road was an officially recognized road in between Nisatta Hashtnagar and Peshawar. The other road vie. Shabqadar now called Charsaddi Road was a read of longer distance from Nisatta/ Ilashtnagar to Peshawar and as this road had no link between Hashtnagar/ Nisatta and Peshawar, it is natural to conclude that people of Nisatta/Hashtnagar would not have used Shabqadar Road as the medium of their journey to Peshawar in ancient times. In the circumstances, it is not surprising that the present Dalazak Road was known and called Nisatta Road as well as Hashtnaari Road, the moreso as this fact is mentioned in the two Notifications Nos, 127 and 129 issued in 1886. There is no mention in the official record that any road stemming at Octroi Post from Shabqadat Road towards Hashtnagri Gate was even in existence. There was then no population on either side of this road. The whole area was then an agricultural. land and is appears that the pedestrians forced their way as narrow path in the fields to cut short their approach and access to the Eastern localities of Peshawar including Hashtnagri. That this road was a Kacha road is a matter of recent past. It became a matalled road when the area was developed into population. Therefore, as long ago as a century when Notifications Nos. 127 and 129 were issued or in the more remote past, this road cannot be said to have been then a by-path muchless on official road. This fact is amply supported by the fact that to the map and in the official record, there are shown only two roads. Those two roads are Shabqadar Road and the present Dalazak Road. That the present Dalazak Road was previously known as Nisatta Road as well as Hashtnagr. Road is a matter beyond doubt and confusion, as this road was a traditional route for the people of Nisatta and Hashtnagar and, therefore, was named as well as Hashtnagri Road in the past.

27. The upshot of the above discussion is that the lands of the land-, owners in the present case are situated within the Peshawar Municipal limits .k Consequently the appeals (R. S. As. Nos. 46, 48, 49, 50, 51 and 56 of 1974), filed by the landowners fail and the same are dismissed while the appeal (R. F. A. No. 24 of 1972) filed by the Government is allowed. Under the circumstances, there would be no order as to costs. S. A. H. Order accordingly