P L D 1964 W (PLP)

2. The facts are that the petitioner, who has since died, was granted permission to convert an area of 6 Ghuntas out of his Kabuli S. No. 612 in Deh Chijan, taluka Mirpur Mithelo to non‑agricultural use in 1918. The petitioner's son, Allah Ditto submitted an application to the Inspector, Anti‑Corrup tion on 9‑7‑1960, against Muhammad Anwar, Tappedar and repeal ed the charge in an application, dated 31st August 1960, a copy which is at Exh. P/I From this the petitioner's prosecution appears to have started. For this Tappedar lodged a report against him, dated 1‑8‑60 in which he alleged that he was making non‑agricultural use of 26 Ghuntas of this S. No. in addition to their 6 Ghuntas sanctioned in 1918 i.e. 32 Ghuntas in all. He, therefore, fled up the penal form No. 1 of 1960. The Supervising Tappedar in his endorsement, dated 21st September 1960, certified the entry to be correct. Thereupon the Deputy Collector, Rohri, without much ado in his order, dated 23rd September 1960, imposed fine equal to one assessment for ten years and ten assessments as fine, total Rs. 2,

052. This crippling fine was imposed without calling upon the petitioners or hearing them. It is a sad commentary of the state of administration in so far as the rural masses are concealed that even the Deputy Commissioner did not provide them an opportunity to be heard in the appeal, which they preferred before him and which he dismissed in his order, dated 20‑2‑61 on the short ground that "the appellant has taken law in his hands and has raised unautho rised construction for which he has rightly been penalized. His appeal, therefore, deserves no consideration and is hereby rejected." He did not take the trouble of dealing with the grounds of appeal, namely, that and application had been filed and the entire construction was on an area of 8 Ghuntas, also been proceedings were started because he had lodged an anti corruption complaint against the Tappedar or that he had already submitted an application for permission to construct the mosque and the Madrissa buildings for Collector's permission, which application his son states the Education Department Officer had promised would be sanctioned in the normal course.

3. I am sure that if the Collector had been mindful of his duty to provide the petitioner an opportunity to be heard, which was incumbent on him as laid down by the Lordships of the Supreme Court in Sohrab Katak v. The Chief Commissioner, Karachi (P L D 1959 S C (Pak.) 45) and Faridsons v. Chief Controller, Imports and Ex ports (P L D 1961 S C 537). his order would have been different.

4. The petitioner preferred a second appeal before the Additional Commissioner who was the first officer who provided him an opportunity to be heard and in consequence partially upheld his appeal and ordered that the fine be imposed on the peti tioner only for the area of 14 Ghuntas, which was utilised by him for construction and not 26 Ghuntas, which was reported by the Tappedar.

5. I have been through the record and also perused the comments of the learned Collector on the grounds of revision, I am rather surprised to read the following comments by the Collector on the ground No. 7 of Revision :‑ "The appilcant can construct huts for better cultivation only." I have already had occasion in my detailed Ruling in Ghulam Umer Khan v. The State (P L D 1963 W. P. (Rev.) 27) to go through the relevant section 65 of the Sind Land Revenue Code and to point out that there is no authority therein that the farm buildings anti other improvements etc, which are allowed to be erected by an occupant of land by himself, his servants, tenants, agents etc. for tire better cultivation or more convenient use of the land are to be kacha huts and that pacca construction is not to be put up without the Collector's permission, otherwise he will be liable to ferocious fines. This being the position much of the basis for the penal action taken is knocked out. The learned Additional Commissioner's order shows that apart from the petitioner's residential houses a mosque and a madrissa buildings have been put up. The son of the petitioner states that in addition there is a welt for drinking as well as irrigation purposes well and cattle sheds. This requires verification. I suppose the mosque cannot be taken exception to in the changed circumstances of Pakistan. It would be sorry state of affairs that the construction of the Madrissa collected to it should also be held objectionable, when we bear in mind that in the adjacent Central Zone the state gives valuable Lands for the construction of schools even to Christian Missionaries and for hospitable on the nominal rental of Rs. 1 per annum. But if the Authorities feel that the Madrissa should be charged differential assessment, and any other buildings held not to be appurtenant to agriculture and better cultivation should be measured up and subjected to a nominal altered assessment and fine, to the extent that the area exceeds the six Ghuntas already sanctioned by the Collector ever-since 1918. The petitioner's son states that the Madrissa has been constructed for the last five years. I see no reason to doubt the statement and I would direct that whatever the decisions a result of measure ment, the altered assessment should run from 1958 and not from 1951.

6. It remains to deal with the necessity for taking very serious notice of the part played by the Tappedar in the assessment of the petitioner. Nobody has cared to take him to task for failure to report the objectionable construction for which he had recommended tawan since 1951‑52 and for having reported an area of 26 Ghuntas and under illicit construction, whereas the subsequent report by the Mukhtiarkar showed that only 14‑7/12 Ghuntas was the area encroached upon and that also according to his old notions of what was permissible under section 65, of the L. R. C. The Tappedar appears to have submitted his exaggerated report as a result of malice due to the Anti‑Corruption report against him. This fact may also be enquired into and suitable action taken against him for making false allegations to the harrassment of law abiding simple country folk, who are said to be running a Madrissa for religious and charitable objects at their own expense.

7. In the result, therefore, I accept the revision, set aside the orders of the Courts below and remand the case back to the Collector for necessary action as indicated above. After measuring the actual area under the Madrissa or other construction considered as objectionable non‑agricultural use, penal action may be taken only if this area exceeds the six Ghuntas which stands sanctioned since 1978.

8. At the same time I would take this opportunity of for warding this case as well as my ruling in Ghulam Umar Khan's case to the learned M. B. R. (LU)/Minister (Revenue) for being apprised of the state of affairs under which the land‑owners are living and for a decision as to whether a state of affairs of this kind can be tolerated in the free state of Pakistan that a person should be imposed heavy penalties totalling over Rs. 2,000 for construction a house or a Madrissa or mosque on his kabuli land if it is felt that as principles or public policy analogous to those in vague in the Central Zone, the Schools and Madrissa should be allowed to be constructed free of penalties or on recovery of very nominal altered assessments, the Deputy Com missioner will be informed. K. M. A. Case remanded.