2005 PLP 814 (MLD)

This Constitutional petition seeks a direction to respondent No.1 to implement his own order dated 26-2-2000 and by demolishing the encroachments made by respondents Nos.5 to 7, possession of the encroached land be handed over to him by declaring the petitioner as owner of the land encroached.

2. Precisely, relevant facts are that petitioner claimed that he along with his daughter and son-in-law purchased land measuring 3 Kanals, 11 Marlas vide two registered sale-deeds, falling in Khasra Nos.43, 46 and 50 of Khewat numbers detailed in the petition situated within the limits of Town Committee, Kharian, District Gujrat. According to him, respondents Nos.5 to 7 constructed a veranda over 10 Marlas of land bearing Khasra No.50 owned by the petitioner. He aggrieved of the alleged illegal action of respondents Nos.5 to 7 filed a suit for permanent injunction against them where they made a statement that they would not make any construction over the land owned by the petitioner and in view of this statement, the suit was disposed of, having become infructuous. Thereafter, petitioner moved an application to DDO(R), Kharian for demarcation of his land in Khasra No.50. Under the order of DDO(R) respondent No.2 Tehsildar Kharian, demarcated land and submitted his report on 12-2-2000 finding that respondents Nos.5 to 7 have constructed veranda over land of the petitioner falling in Khasra No.50. DDO(R) on receipt of report of the Tehsildar, directed demolition of illegal constructions/encroachments by respondents Nos.5 to 7 vide his order dated 26-2-2000. Respondent No.2 issued notice to respondents Nos.5 to 7 for removal of illegal constructions and vacation of the land which necessitated filing of suit for declaration with consequential relief by them, but the same was dismissed and appeal there against failed on 30-1-2003. Petitioner has now come up in Constitutional jurisdiction for the relief noted above.

3. Learned counsel for the petitioner submitted that respondents Nos.1 and 2 were legally bound to implement order dated 26-2-2000 by removing the illegal constructions from the land encroached and to hand over its possession to the petitioner, but they are avoiding to discharge their statutory obligation, thus writ as prayed may be issued against them. He further submitted that the only course for the present deprivation of his property out of encroachment was to proceed for demarcation under section 117 of the Land Revenue Act, 1967 read with rule 67-A of West Pakistan Land Revenue Rules, 1968 and in result thereof, the Collector was competent to remove encroachment under his powers conferred by section 122 of the Act (ibid.).

4. Learned counsel appearing on behalf of the respondents opposed the assertions of the petitioner and submitted that the Collector has no objection to the removal of encroachments under the orders of this Court. He further contended that powers vesting in revenue officials in terms of section 122 of the Land Revenue Act, 1967 can be utilized to the advantage of the person deprived of his property.

5. I have minutely considered the respective arguments of the learned counsel for the parties and have examined the record, appended herewith. Before proceeding with the determination of the controversy, it has to be kept in mind that property subject of dispute is located within limits of Town Committee, Kharian, and is not only urban in nature but has also been converted into building site. For examination whether such property could be demarcated by respondent No.2 (Tehsildar/Revenue Officer) under the provisions of Land Revenue Act, 1967, we will have to see provisions of section 3 thereof, which excludes certain land from operation of the Act. This provision of law clearly excludes the land which is kept as a site of Town or village and is not assessed to land revenue. The property subject of dispute being part of site of the Town provisions of the Act (ibid) were not applicable to it and thus resort to its provisions for demarcation thereof was not permissible. Petitioner himself moved for demarcation of a part of site of the Town under section 117 of the said Act, which equips a revenue officer to define the limits of any estate or of any holding, field or other portion of an estate but cannot be extended for this purpose, to the land not falling in any Estate. Had the land subject of dispute been part of any estate, the revenue officer could have proceeded to demarcate it under section 117(1) of the Act, but he could not undertake any such activity about the land falling outside the limits of the estate of any village. Demarcation in terms of section 177 of the Land Revenue Act, 1967 has to be done under rule 67-A of the West Pakistan Land Revenue Rules, 1968, which as well, refers to defining the limits of an estate, a holding, a field or any portion thereof. In view of this clear provision, there is no ambiguity that a Revenue Officer designated under the Land Revenue Act, 1967 could not demarcate any urban property falling within the limits of Town Committee especially that, which has gained the character of building site.

6. Tehsildar/Revenue Officer (respondent No.2) in his report dated 12-2-2000 alleged to have demarcated Khasra No.50, in possession of respondents Nos.5 to 7 by fixing North-Eastern corner of Khasra No.58 as permanent point. It is not clear from his report that how this corner of Khasra No.58 was taken as permanent point, without bringing measurement from any Pakka point fixed during last settlement or like road, canal, well etc. Under the Financial Commissioner's instructions of demarcation which were adopted by this Court in High Court Rules and Orders, Volume-V, Chapter 1-D, the demarcating officer was required to measure the properties subject of demarcation from three permanent places and he was required to show this measurement in his report by erecting boundaries of each Khasra number intervening, but no such step was taken. Report of Tehsildar reveals that he was aware of the instructions of the Financial Commissioner and he attempted to justify his report through fake fixation of Khasra Nos.43, 46, 51 and

58. The measurements shown in the report were not made according to "Shajra Aks" or "Masavi" without which he could not find out at the spot, whether the measurement done by him is according to the Revenue Record or not.

7. Properties of parties were, undeniably urban even at the time of allotment by Deputy Settlement and Rehabilitation Commissioner, for this reason as well, Revenue Officer was not competent to undertake the exercise of demarcation. Under law, the Revenue Officer could only demarcate boundaries of any estate or any part thereof, under the provisions already discussed. Predecessor of the respondents, who was plaintiff, was required to prove his title to property in possession of the petitioners through some lawful/cogent evidence, in absence of which his suit could not have been decreed. Even otherwise, since there was the only dispute of demarcation which could have resolved the controversy for all times to come, the trial Court should have invoked its own jurisdiction in this behalf, in spite of report Exh.P.1, but both the Courts below, being oblivious of their jurisdiction under Order XXVI, rule 9, C.P.C. proceeded to decide the lis without adverting to legality or otherwise of the said report.

8. Besides the fact that report was not prepared according to law, encroachments shown therein could not have been removed by the Revenue officials because no such power vested in them for granting a decree for possession in summary proceedings and that too on the basis of an unauthorized and illegal demarcation report. Emphasis of the learned counsel for the petitioner that Collector by virtue of his powers under section 122 of the Land Revenue Act, 1967 could order dispossession of persons in wrongful possession of any land, is absolutely misplaced. This section has to be read in conjunction with preceding section i.e. 121 which relates to the manner of fixing boundaries of all or any of the estate in any local area under the Rules framed by the Board of Revenue. Power of Collector to remove persons in wrongful possession of the land is conferred on him for erecting boundaries of an estate and not for any part thereof especially when some private individual asserted encroachment by his adjoining owner or someone else. Petitioner instead of insisting possession through officials in revenue hierarchy out of summary proceedings, should have filed a suit for possession against respondents Nos.5 to 7 where his property was to be demarcated under the orders of the Civil Court under the provisions of Order XXVI, rule 9, C.P.C.

9. For the reasons noted above, an illegal order by respondent No.1 dated 26-2-2000 cannot be ordered to be implemented without adjudication regarding ownership of the land subject of dispute or without proper fixation of its boundaries. The prayer made is untenable, hence this petition has no substance in it and is accordingly dismissed with no order as to costs. M.H./J-57/L Petition dismissed.