SHAMIR KHAN vs MEMBER, (CONS.) BOARD OF REVENUE; PUNJAB, LAHORE And 8 Other

1. WALT MUHAMMAD KHAN, J.---Through the instant appeal, by leave of the Court, the appellant- challenges the order of the Lahore High Court dated 24-6-1990, whereby his Writ Petition against the order dated 21-3-1990 passed by the Member (Consolidation), Board of Revenue; Additional Commissioner (Consolidation) dated 27-6-1988; and Additional Deputy Commissioner/Collector (Consolidation) dated 17-3-1988, was dismissed. Leave to appeal was granted, inter alia, on the ground "that the land having been built upon and used for commercial purposes, in the vicinity whereof several other commercial buildings have sprung up, stood denuded of 4 its character as agricultural land, and thus ceased to be amenable to the jurisdiction of the authorities under the Consolidation of Holdings Ordinance, 1960".

2. The admitted facts of the case are that Shamir Khan appellant was the owner of land measuring 8 Kanals, 3 Marlas, bearing Khasra Nos.1230/2 and 1?31 /2, through purchase from an allottee from the Central Government, successor-in-interest of the evacuees. He sold half of it in favour of Shaikh Muhammad lqbal, respondent No.5 herein, vide Mutation No.1003 attested on 11-1-1973. A petrol pump was in existence on the said land since prior to the alienation in favour of Shaikh Muhammad lqbal as is evident from the copies of Khasra Girdawari (pages 55 and 56 of the paper book) wherein part of area is recorded as petrol pump as far back as Kharif 1968 and registered lease deed dated 30-10-1972 executed between Shamir Khan appellant and Pakistan Burmah Shell, showing Shamir Khan Lessor as the owner in possession of the, said land by virtue of registered sale-deed dated 12-7-1970. A petrol pump was installed in the land in question and it had practically lost its character as agricultural land. The site plan (copy at page 72 of the paper book), which has not been disputed at the time.Of arguments, also shows that the surroundings of the petrol pump comprise of built up areas. Consolidation operation commenced in the year 1980 in the estate where the suit land is situated and the grievances of the appellant is that respondent No.5 Shaikh Muhammad lqbal, in collusion with the consolidation staff, got greater area than his due on the roadside allotted to him and also that the land in question being not land as , defined in the Punjab Tenancy Act and Alienation of Land Act, could not be included in the consolidation operation and as such the impugned orders of the Consolidation Officers are coram non judice. His appeal before the hierarchy of Consolidation Officers having failed, he approached the High Court in Constitutional jurisdiction which also could not succeed. Hence the instant appeal.

3. We have heard Mian Saeedur Rehman Farrukh, Advocate; for the appellant, Mr. Jariullah Khan, Advocate, for respondent No.5 and have perused the record of the case. The only question for determination before us is whether * the land in dispute having assumed character of residential/commercial area could be the subject-matter of consolidation proceedings or not.

4. Under section 2 subsection (t) of the Consolidation of Holdings Ordinance, 1960, the - consolidation of holdings means the redistribution of all or any of the lands in an estate or sub-division of an estate so as to reduce the number of plots. Estate is defined as an area for which a separate record-of-rights has' been made; or which has been separately assessed to land revenue: or would have been so assessed if the land revenue had not been released, compounded for or redeemed; or which the Board of Revenue may, by general rule or special order declare to be an estatc. Unfortunately, land is neither defined in the Ordinance ibid nor in the West Pakistan Land Revenue Act, 1967, which is the Statute dealing with the settlement of lands, preparation of separate record of rights and partition of land etc. However, land is defined in the Punjab Tenancy Act as the one which is not occupied as the site of any building in a town or village and is occupied or has been let for agricultural purposes or for purposes subservient to agriculture or for pasture, and includes the site of building or any structure on such land. Under section 2(3) of the West Pakistan Alienation of Land Act, the expression `land' means land which is not occupied as the site of any building in a town or village and is occupied or let for agricultural purposes or for purposes subservient to agricultural or for pasture, and includes:--'

(a) the sites of buildings and other structures on such land;

(b) a share in the profits of an estate or holding; (c)any dues or any fixed percentage of the land revenue payable by an inferior landowner to a superior landowner; (d)a right to receive rent;

(e) any right to water enjoyed by the owner or occupier of land as such; (f) any right of occupancy; (g)all trees standing on such land.

5. The idea behind consolidation of holdings is redistribution of or any of the lands in an estate or a division of estate so as to reduce the number of plots. Obviously, consolidation of land was not of the other properties which have undergone the change from its agricultural use to residential or commercial purposes. As stated earlier, the disputed land, though bearing Khasra numbers and forming part of the estate, is being used for commercial purpose since more than twenty years prior to the initiation of the consolidation proceedings, and the same could not be conveniently included in the consolidation proceedings primarily meant for the agricultural property.

6. Additionally, Shaikh Muhammad Iqbal respondent No.5 was not owner in the agricultural lands forming part of the estate and he was only holding half of the suit Khasra numbers vide Mutation No.1003 attested on 11-1-1973 when the same was no longer agricultural land as is clear from the entry of the mutation itself. The total area of the two Khasra Nos.1230/2 and 1231/2 is 8 Kanals 3 Marlas and after the attestation of mutation it is jointly owned by Shamir appellant and Shaikh Muhammad lqbal respondent No.5. The remedy for anyone of them to separate his share lay in the partition of the property through a competent Court of law, if he no longer desires to keep it joint.

7. The question of jurisdiction was raised before the Member, Board of Revenue, respondent No.l herein, but he had brushed it aside on the simple ground that the aggrieved party could apply for the exclusion of the said area from consolidation under section 9-A of the Consolidation of Holdings Ordinance, 1960, before confirmation thereof. We are afraid, the learned Member (Consolidation), Board of Revenue, has not correctly appreciated the question of jurisdiction involved. Section 9-A empowers the Board of Revenue to exclude any land from scheme of consolidation in the public interest only and that too, before the confirmation of the scheme. The appellant had agitated before him that the entire proceedings qua the said Khasra Nos.1230/2 and 1231/2 were without jurisdiction as the same was not agricultural land. The learned Single Judge of the High Court, too, has not considered this legal aspect of the case in its true perspective. The impugned judgments of the lower forums are, therefore, not sustainable.

8. In view of what has been stated above, we accept the appeal, set aside ,the impugned judgment of the High Court as well as of the hierarchy of consolidation forums and exclude Khasra Nos.1230/2 measuring 2 Kanals 13 Marlas and 1231/2 measuring -5 Kanals 10 Marlas from consolidation operation and declare them to be the joint property in equal shares between. Shamir appellant and Shaikh Muhammad lqbal respondent No.5. No order as to costs.