ILLAHI BUX ETC. Versus THE STATE

ORDER

This is a revision petition against the order dated 27‑9‑1968 of the Additional Commissioner, Khairpur, whereby he rejected the appeal of Ghulam Kadir Daheri, the father of the petitioners, in respect of remokal fine to the extent of Rs. 13412.79 imposed against him for burning brick kiln in S. No. 106/3, Deh 61 Nusrat, taluka Nawabshah, during 1967‑68 and for raising unau thorised construction in S. Nos. 106/ 1 and 2 and 91/3 and 4 of the same Deh during the years 1966‑57 and 1967‑68.

2. The facts of the case are that Ghulam Kadir was penalized to the above extent by the Deputy Commissioner, Nawab shah. He preferred an appeal to the Additional Commissioner, Khairpur which was rejected vide the impugned order.

3. I heard the counsel for the petitioners on 28‑1‑1971. He had urged the following points:

(i) The petitioners' father had applied for permission to burn brick kiln on 18‑7‑1967 and 9‑12‑1967 but he was inform ed that the permission was not necessary after introduction of West Pakistan Land Revenue Act, 1967. His applications were entered in the records of the Deputy Commissioner's Office. He had started with the brick kiln in January 1968. Section 48 of Sind Land Revenue Code had been repealed by the West Pakistan Land Revenue Act, 1967.

Note :‑‑The petitioner's counsel could not establish this point and did not press for ft.

(ii) No show‑cause notice had been served on the petitioners' father before imposition of the penalty. The Mukhtiarkar was annoyed with him and he had managed to get the false endorse ment on the notice from his staff that their father had refused to take delivery of the notice. The petitioners' father was even anxious to get the notices when he had come to know that penal action was being manipulated against him and he had sent a telegram to the Mukhtiarkar to send him the notice but he was informed through a letter No. 2824, dated 8‑7‑1968 that ‑the notices had been served on his servant.

(iii) The area used under construction was only 1.5 acres and according to report dated 26‑9‑1968 of the Mukhtiarkar, it was only 1.21 acres. The land, though within compound walls, was used for agricultural purposes and penalty on the entire area of 13.0 acres was not justified. No area was utilized in 1966‑67 (He produced a photostat copy of the cultivation details .of the land from the P.W.D. Authorities according to which the land was uncultivated during kharif 1967‑68, it was cultivated during rabi, 1967‑68 except 0.5 acres from S. No. 106/3, where brick kiln had been started from February 1968).

4. I had sent for the original record of the P.W.D. photostat copy whereof had been produced by the petitioner's counsel. According to the register maintained by the Canal Patwari, S. Nos. 91/3, 91/4, 105/1 and 106/2 were uncultivated during kharif 1967‑68 and were cultivated with sarenh during rabi 1967‑68 and S. No. 106/3 was uncultivated during kharif 1967‑68 and brick kiln was stated to have been started in an area of 0.5 acres out of it with effect from February 1968.

5. I have "considered the arguments put forth by the counsel and have seen the record. A report about the position .of the record‑of‑rights in respect of the S. Nos. in question was called for from the Mukhtiarkar, Nawabshah, which was received from him vide his letter No. 1586 dated 2‑6‑1971 and which has also been perused by me. I have also perused two original penal forms bearing the orders of the Deputy Com missioner. a show‑cause notice in duplicate stated to have been issued to Ghulam Kadir bearing a note of a Tapedar that Ghulam Kadir refused to receive the notice and the demand notice for payment of fine issued to Ghulam Kadir and served on Aqil Lahari on 29th June 1968.

6. It is observed that no date is shown on any of the penal forms or on the notices issued in this case and I am surprised to find that the penal forms were lamentably lacking in these pertinent and important details. The service of the show‑cause notice stated to have been made on the defaulter ex‑party was also not proper. Firstly, no one in his senses would refuse to take a show‑cause notice and face the consequence .of such an action. Secondly, if at all, the defaulter had refused to allow service of the notice, service report ex‑party should have been verified by the Mashirs. The present service however is without any verification of Mashirs. The contention of the petitioners that no show‑cause notice was served on Ghulam Kadir is supported by the letter No. 2824 dated 8th July 1968, from the Mukhtiarkar addressed to Ghulam Kadir in which it is accepted that telegram was sent by the petitioners' father for supply of notice in respect of fine. It does not stand to reason that a person would refuse to accept the notice and then send a telegram for it. This also lends support to the contentions of the petitioners that the lower revenue staff was, against Ghulam Kadir. Unfortunately even the Revenue Officers. serving the notices do not know the requirements of sec tions 24 and 25 of the West Pakistan Land Revenue Act,. 1967 and outrageously and deliberately ignore the compliance of such provisions and thus defeat the ends of equity and justice. Although the Mukhtiarkar himself admitted in this letter No. 2824 dated 8th July 1968 that the notice had been served on Muhammad Aqil (who was obviously not a person authorised to receive the notice) yet the Muthtiarkar was not prepared to furnish Ghulam Kadir with a copy of the notice. Only one conclusion could be drawn from such conduct (or it may better be called misconduct) that the revenue officers from the Mukhtiarkar downwards were certainly prejudiced against the petitioners and wanted to harass them.

7. The Supreme Court has held in P L D 1959 S C (Pak.), 45 and P L D 1961 S C 537 that the rule of natural justice require that no one should be condemned unheard. The Board of Revenue, West Pakistan vide its memorandum No. 3456‑46 IV/35‑p dated 9th January 1965 directed specifically that before remokal fines are actually imposed the Jamabandi Office should as a rule, issue show‑cause notice to the person concerned against whom remokal fine is proposed to be imposed. All the revenue officers work under the superintendence and control of the Board of Revenue and it is surprising that these officers should have the cheek to ignore the rulings of Supreme Court and instructions of the Board of Revenue, and continue to indulge in practices and procedures which are not only unwarranted but also run counter to these instructions and rulings.

8. In view of above, I hold that in the present case proper opportunity was not afforded to the defaulter to show cause before imposition of the penalty and the penal action taken in the case is defective on that account.

9. My further observations with regard to the penal action are as follows :‑

(a) Penal action for raising constructions in S. No. 91/3 and 4 and 106/1 and 2 for 1966‑67.

(i) Extract of record‑of‑rights and the report of Mukhtiarkar, Nawabshah received with his No. 1586, dated 2‑6‑1971 show that these S. Nos : belonged to other persons and not too the father of the petitioners during the year 1966‑67 as shown below

S. No. Name of occupant

106/1 and 2 Evacuee property. Allotted to claimant

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.

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Total 12.18 acres.

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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.