FAZAL AHMAD Versus MUHAMMAD ASLAM
ORDER
These revision petitions are directed under section 13 of the Consolidation of Holdings Ordinance, 1960, against the order, dated 13‑5‑198& (if the Additional Commissioner (Cons.) Gujranwala Division, whereby original Consolidation Scheme was restored with slight amendments.
2, Breif facts of the case are that the Consolidation Scheme of village Shadiwal Khanko, Tehsil and District Gujrat was confirmed under section 10(3) of the Ordinance ibid by the Consolidation Officer on 3‑5‑1978. The petitioners feeling aggrieved filed an appeal before the Collector (Cons.) who vide his order, dated 8‑5‑1979 remanded the case to the Consolidation Officer with the direction to restore the original land of the petitioners which was situated near the road. The Consolidation Officer did not confine himself the direction given in the remand order and made certain amendments which were not approved by the Collector (Cons.) who vide his order dated 4‑12‑1979 made certain amendments in the Wandas of the parties. Against that order five appeals were preferred before the Additional Commissioner (Cons.) who vide his order, dated 6‑7‑1981 remanded these cases to the Consolidation Officer with the direction that he should act upon the order dated 8‑5‑1979 passed by the Collector (Cons.). In compliance with the remand order the Consolidation Officer made some adjustments on 17‑3‑1982. Against this amendment three appeals titled Karam Dad. v. Fazal Ahmed, Ghulam Rasool v. Muhammad Ali Nazir Hussain v. Muhammad Aslam were preferred before the Collector (Cons.) who again set aside the order of the Consolidation Officer and made amendments in the Khatas of the parties himself on 10‑8‑1982. Against this order seven appeals were filed before the Additional Commissioner (Cons.) who vide his order, dated 23‑1‑1985 accepted the same and set aside the order of the Collector dated 10‑8‑1982 and restored the order of the Consolidation Officer dated 17‑3‑1982. This order was challenged before the Member (Cons.) Board of Revenue, Punjab who vide his order, dated 22‑8‑1985 dismissed the 'revision petitions. Against that order review petitions were filed and the Member (Judicial) vide his order, dated 27‑2‑1986 recalled his earlier order and remanded the case to the Additional Commissioner (Cons.) for fresh decision who vide his order, dated 13‑5‑1986 restored the original Consolidation Scheme with slight amendments in the Wandas of the petitioners and Rafaqat Hussain's Scheme No.42. Hence these revision petitions.
3. The learned counsel for the petitioners argued that Shadiwal revenue estate was a commercial and suburban town of Gujrat city on the metalled road. The petitioners owned and possessed 67K‑7M on both the sides of the metalled road comprising Khasras Nos.563 to 568 and 572 to 579. This valuable land was given t the respondents which caused injury to the petitioners and gave undue benefit to the respondents. The land given in lieu thereof to the petitioners in the original consolidation scheme, and now through the impugned order, consisting of Khasras Nos.1116 to 1122 and 1132 to 1136 did not contain a single Maria of the previous land of the petitioners and Khasras Nos.1133 and 1134 were situated in the river bed. This contention was admitted by the respondents too as contained in para 3(iv) of Member (Judicial)'s order, dated 27‑2‑1986 as follows:‑‑
"That in exchange of the land withdrawn from the petitioners, they have been given land in Khasras Nos.1116 to 1120, 1123, 1160 and 1163 which is hit by river Chenab and is unfit for cultivation purposes. Obviously the petitioners have been deprived of best quality of land and have been given land of poor quality and of much less value."
The impugned order suffered from misreading of facts by the learned Additional Commissioner (Cons.) as Nafisa Begun and the petitioners were not joint owners. The scheme was challenged by the petitioners after confirmation and the case was remanded by the Collector (Cons.) to the Consolidation Officer vide his order, dated 8‑5‑1979 which had ultimately attained finality as it was not challenged. Thus, the petitioners were entitled to land situated on the metalled road. The observation of the Additional Commissioner (Cons.) that all previous orders, directions and amendments had become infructuous, was not correct. The Collector (Cons.) in his remand order had observed that he `had perused the pre and post sketch map prepared by the Patwari and found that the appellants had not been given any land of their previous area which was close to the road leading from Gujrat to Shadiwal, which area was of better quality'. The learned counsel in this connection relied upon P L D 1987 Rev. 31 and P L D 1989 Lah. 200. Further, that the learned Additional Commissioner (Cons.) had not complied with the directions contained in the order of the Member (Judicial), dated 27‑2‑1986 and had not looked at the entitlement of the parties after locating the original files as mentioned in that order. The petitioners were still in possession of the land situated on the metalled road and :he respondents had never cared to take possession and thus suitable amendments in the schemes can be made without any difficulty. The respondents had been unduly benefited at the cost of the petitioners and, therefore, the impugned order may be reversed and order of the Consolidation Officer, dated 17‑3‑1982 may be restored between the parties.
4. The learned counsel for the respondents Radaqat Hussain and Muzaffar Hussain stated that the petitioners did not file any appeal against the order of the Consolidation Officer, dated 17‑3‑1982 and as such this order had become final against the petitioners. Three appeals titled `Karamdad v. Fazal Ahmed; `Ghulam Rasul v. Muhammad Ali' and `Nazir Hussain ‑V. Muhammad Aslam' were filed before the Collector (Cons.) against this order who made further amendments in the Khatas of the parties vide his order, dated 10‑8‑1982. Seven appeals titled (1) Ghulam Rasul v. Muhammad Ali etc. (2) Nazar Hussain v. Muhammad Aslam etc. (3) Muhammad Ali v. Fazal Ahmed etc. (4) Bashir Ahmed v. Muhammad Aslam etc. (5) Muhammad Ashraf etc. v. Rashida Begum etc. (6) Muzaffar, Hussain v. Rashid Begum etc. and (7) Rafaqat Hussain v. Rashid Begum etc. were preferred against the Collector (Cons.)'s order before the Additional Commissioner (Cons.) who vide his order, dated 23‑1‑1985 restored the Consolidation Officer's order dated 17‑3‑1982. Four revision petitions titled (1). Muhammad Aslam etc. v. Rafaqat Hussain etc. (2) Muhammad Aslam etc. v. Muhammad Ashraf etc. (3) Muhammad Aslam etc. v. Bashir Ahmed etc. and (4) Ghulam Rasul etc. v. Ghulam Ali etc. were filed in the Board of Revenue which were dismissed in limine by the Member (Consolidation) vide his order, dated 22‑8‑1985 but on a review petition the Member (Consolidation) recalled his order, dated 22‑8‑1985 and remanded the cases to the Additional Commissioner (Cons.) Gujranwala vide his order, dated 27‑2‑1986. On remand the Additions Commissioner (Cons.) restored the original consolidation schemes of the parties with the exception of schemes Nos.42, 204 and 207 vide his impugned order. R.O.R. No. 1554 of 1986 was liable to be dismissed against Rafaqat Hussain and Manzoor Hussain respondents because the did not receive any land from the petitioners. The land allocated to petitioner Fazal Ahmed was situated adjacent to village Goraya and was Nian land. The record of the village had been returned to Mahal side and Consolidation Scheme was confirmed about 12 years ago. A lot of development had taken place during the 12 years and it would not be possible to deprive the respondents of the legal rights accrued to them during the last 12 years and a large number of schemes will be disturbed if any adjustments were to be made.
5. Malik Manzoor Ahmed Khokhar, Advocate, counsel for the respondents Ashraf, Khizar Hayat and Muhammad Aslam stated if the land on the metalled road were to be distributed as per entitlement of every right‑holder then there was no objection from his clients because no one was agreeable to accept the land in Bela (River Belt). In fact that land belonged to Rafaqat Hussain and Nadir Hussain and they were the proper party to have that land. Rafaqat Hussain had received bulk of land near metalled road against his entitlement. Similarly Muhammad Salehoon had received above 7 acres of land at this place whereas before consolidation he had no land there.
6. Ch. Rashid Ahmed Khokhar, Advocate, counsel for respondents Ghulam Muhammad, Sardar Bibi, Muhammad Riaz, Imtiaz, Ayaz, Tufail, Irshad, Amina Bibi, Surraya Bibi, Aslam Rashida, Ghazala Nasreen, Shabana Jabin, Shazia Nasreen, Amina Banu, Muhammad Akram contended that real tie was between the petitioners and Rafaqat Hussain respondents but the Courts below on various occasions had unnecessarily involved so many schemes without any justification. The land in dispute was situated near by-pass and was superior in its nature and no one was ready to surrender that valuable land. Some right‑holders had constructed houses and planted gardens and the area had been developed after hard labour.
7. I have considered the arguments, perused the case record and other related documents and seen the sketch‑map prepared by the Patwari. It has not been denied by anyone that the petitioner Fazal Ahmed's pre-consolidation land was located on or near the main road and that during the consolidation operations he was pushed back. in different directions. It is common knowledge that the land situated on the metalled road, because of its commercial potential, is far more valuable than the land situated even slightly away from the road, let us say, about 100 yards or 200 yards and the value of the land decreases proportionately as it moves away from the road. Therefore, the contention of the learned counsel for respondents that Fazal Ahmed's grievances had been redressed to a large extent does not stand this test. The instructions governing consolidation operations are centered around the value of land and prescribe detailed methodology for arriving at value of land such as soil classification, Qeemat Andazi, compensation for wells and trees; other developments affecting the land etc. so that no right‑holder is put to loss. For purposes of computing the value of land there can be difference in the value of Class I land situated on the main road and at a distance from it, and in fact sometimes even Class IV land situated on the road can be far more valuable, but decidedly less productive, than Class I land situated in the Nian of the village. The value of the land as well as its productive capacity has, therefore, to be kept in view for purpose of consolidation. Even if the petitioners had' been given Class I land away from the road their grievances would still have weight because they would have received less value for their holding. In the long history of this litigation this factor seems to have been given little consideration.
8. The learned Additional Commissioner (Cons.) in the impugned order has stressed that a large number of schemes will be disturbed if the petitioners were to be accommodated on their previously held land at this stage. But he does not seem to have considered whether it would be fair and just to deprive Fazal Ahmed of his most valuable possession for the rest of life under the cover of consolidation. Similarly, the learned Additional Commissioner (Cons.) does not seem to have made any serious effort to arrive at a satisfactory solution of the case and another effort is, therefore, indicated to meet the petitioners' very real and well‑founded grievances. The revision petition is, therefore, accepted, the impugned order is set aside and the case is remanded to the Additional Commissioner (Cons.) for fresh decision after hearing the parties and taking into consideration the value of the land and structures, in monetary terms so that each party receives their correct and fair entitlement. Due regard shall also be paid to the improvements effected in the land for determining compensation as would be to the directions contained in Member (Cons.)'s Board of Revenue order, dated 27‑2‑1936.
AA./454/R Case remanded.