Updated: Friday July 19, 2019/AlJumaa
Thoul Ki'dah 17, 1440/Sukravara
Asadha 28, 1941, at 04:21:09 PM
P L D 2019 Supreme
Court 297
Present: Mian Saqib
Nisar, C.J., Faisal Arab and Ijaz ul Ahsan, JJ
HUMAN RIGHTS CASE
NO.69229-P OF 2018
HUMAN RIGHTS CASE
NO.69229-P OF 2018, decided on 3rd January, 2019.
(Regarding functioning of
Patwaris, Kanungos and Tehsildars in urban area of
(a) Words and
phrases---
----“Land”---Meaning. Black’s Law Dictionary (Ninth Edn.);
Chambers 21st Century Dictionary and Wharton’s Law Lexicon (Fourteenth Edn.)
ref.
(b)
----Ss. 3 & 56(2)---Land
exempt from operation of Punjab Land Revenue Act, 1967 (“the Act”)---Scope---Any
land that was occupied as the site of a town or village and was not assessed to
land revenue was exempt from the operation of the provisions of the
Act---However, every case must be decided on its merits and the mere inclusion
of a certain area within a town/village for jurisdictional purposes did not
trigger the exemption from land revenue under the law.
(c)
----Ss. 3, 42, 42-A &
56(2)---Transfer of Property Act (IV of 1882), Ss.54, 59, 107, 118 &
123---Registration Act (XVI of 1908), S. 17---Punjab Urban Immovable Property
Tax Act (V of 1958), S. 3---Punjab Local Government Act (XVIII of 2013), Ss.
2(hhh) & 6(2)---Human rights case---Matter regarding functioning of
Patwaris, Kanungos and Tehsildars in urban areas of cities---Land/estate
located within “rating areas” of the Punjab Urban Immoveable Property Tax Act,
1958, was exempted from the payment of land revenue and the revenue
authorities---Patwaries, Kanungos, Tehsildars etc., were not authorized to
enter mutations of alienation of such property etc., in their record---Revenue
authorities were to refrain from any and all functions (to the extent that
these were within the ambit of the (Punjab Urban Immoveable Property Tax Act,
1958) in the said areas particularly with regards to entering mutations,
etc.---Supreme Court directed that all the urban areas to which the Punjab Land
Revenue Act, 1967 did not apply shall be governed by the Transfer of Property
Act, 1882 and the Registration Act, 1908 for the purposes of transfer of
property or devolution of any rights in property; that no oral mutations for
the purposes of the transfer of property shall be valid in law in such urban
areas (which had become part of settled areas including municipalities, towns,
etc.); that the patwaarkhanas or revenue records could only be maintained for
record keeping and not for the transfer of property under any of the modes
recognized by the Transfer of Property Act, 1882 or any other law prevalent at
the time; and, that since the revenue authorities of the Province of Khyber
Pakhtunkhwa (KPK) were already compliant with the said directions, the findings
and directions of the present case shall also apply to the Provinces of Sindh
and Balochistan as well as that of the Federal Capital.
Pervez Ahmad Khan Burki and 3 others v.
Assistant Commissioner, Lahore Cantt. and 2 others PLD 1999 Lah. 31; Dr. Jalal
Khan v. Qazi Naseer Ahmed District Deputy Officer, (Revenue), Kharian, District
Gujrat and 6 others 2005 MLD 814: Khizar Hayat and another v. Pakistan Railway
through Chairman, Pakistan Railways, Lahore and 2 others 2006 CLC 1028;
Muhammad Muneer and 7 others v. Member Board of Revenue, Punjab, Lahore and 12
others 2009 MLD 930; Makhdum Raju Shah v. Member Board of Revenue Punjab and 17
others 2011 YLR 1724 and Muhammad Ayaz and others v. Malik Zareef Khan and
others PLD 2016 Pesh. 8 ref.
In attendance:
Ahmed Awais, A.G. Punjab.
Rana Shamshad Khan, Addl. A.G.
Sibtain Mahmood, AAG, Sindh.
Ayaz Swati, Addl. A.G. Balochistan.
Malik Akhtar Hussain, Addl. A.G. Khyber
Pakhtunkhwa.
Syed Ahsan Mustafa, Director BOR
Punjab.
Saadullah, Supdt. BOR, Khyber
Pakhtunkhwa.
Habibullah, Law Officer for DC,
Mian Zafar Iqbal Kalanauri, Advocate
Supreme Court.
Amanullah Kanrani, Advocate Supreme
Court, SCBA (amicus curiae).
Date of hearintg: 3rd January, 2019.
JUDGMENT
MIAN SAQIB NISAR, CJ.- The instant matter arises from a suo
motu notice taken pursuant to various complaints that despite the fact that
Lahore is an urban area and thus not subject to land revenue, revenue
authorities are functioning therein and entering mutations, etc. A report was
called from the Senior Member, Board of Revenue (MBR),
i. Within the District of Lahore there are
363 estatts/mauzas in Tehsils Raiwind, City, Cantonment, Shalimar and
ii. Out of these estates, 246 are under
settlement, three are under consolidation of holdings operation and the
remaining 114 are urban;
iii. The land records of 218 estates in
Lahore District have been computerized and the Board of Revenue, Punjab has
already issued notifications under Section 41-A(2) of the Punjab Land Revenue
Act, 1967 (the Act of 1967);
iv. Sections 41-A and 41-B of the Act of
1967 deal with preparation of computerized records;
v. Section 42 thereof deals with the
procedure of manual mutation by the revenue field officers;
vi. Section 42-A thereof deals with
computerized mutation at the Arazi Record Centres at Tehsil level;
vii. The Arazi Record Centers at the Tehsil
level established under the Punjab Land Records Authority Act, 2017 deal with
computerized land revenue record; and
viii. Since the land record of 218 estates in
Lahore District has been computerized while the remaining 145 are yet to be
computerized, therefore, Patwaris, Kanungos and Tehsildars are dealing with
mutations and maintaining the revenue record in the light of the instruction
issued by the Board of Revenue under the purview of the Act of 1967 and the
Punjab Land Record Manual (Second Edition 1958).
Notices were also issued
to the other provinces for their input. The Senior MBR, KPK in his report has
submitted that the Act of 1967 is applicable in the
2. Before proceeding further it would be
appropriate to consider the relevant provisions of the Punjab Land Revenue Act,
1887 (Act of 1887), the Act of 1967 and the Punjab Local Government Act, 2013,
which read as under:-
The
3. Definitions.- (1) “estate” means any
area-
(a) for which a separate
record-of-rights has been made; or
(b) 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
(c) which the Local Government may, by
general rule or special order, declare to be an estate;
4. Exclusion of certain land from
operation of Act.- (1) Except so far as may be necessary for the record,
recovery and administration of village cesses, nothing in this Act applies to
land which is occupied as the site of a town or village and is not assessed to
land revenue.
(2) A Revenue Officer may define, for
the purpose of this Act, the limits of any such land”.
31. Record of rights and documents
included therein.- (1) Save as otherwise provided by this Chapter, there shall
be record of rights for each estate.
(2) The record of rights for an estate
shall include the following documents, namely:-
(a) statements showing, so far as may
be practicable,-
(i) the persons who are land owners,
tenants or assignees of land revenue in the estate , or who are entitled to
receive any of the rents, profits or produce of the estate or to occupy land
therein;-
……
(d) such other documents as the Financial
Commissioner may with the previous sanction of the Provincial Governments,
prescribe.
The
3. Exclusion of certain land from
operation of this Act.- (1) Except so far as may be necessary for the record,
recovery and administration of village cess, or for purposes of survey, nothing
in this Act applies to land which is occupied as the site of a town or village,
and is not assessed to land revenue.
(2) It shall be lawful for the
Collector acting under the general or special orders of the Board of Revenue,
to determine for the purposes of this Act, what lands are included within the
site of a town or village, and to fix and from time to time to vary the limits
of the same, regard being had to all the subsisting rights of the land-owners.”
4. Definitions.- (9) “estate” means any
area-
(i) for which a separate
record-of-rights has been made; or
(ii) which has been separately assessed
to land-revenue; or
(iii) which the Board of Revenue may, by
general rule or special order, declare to be an estate;
39. Records-of-rights and documents
included therein.- (1) Save as otherwise provided by this Chapter there shall
be a record of rights for each estate.
(2) The record-of-rights for an estate
shall include the following documents, namely:-
(a) statements showing, so far as may
be practicable:
(1) the persons who are land-owners„ or
who are entitled to receive any of the rents, profits or produce of the estate
or to occupy land therein;
……
(d) such other documents as the Board
of Revenue may, with the previous approval of Government, prescribe.
56. Assessment of land revenue.- (1)
Al1 land, to whatever purpose applied and wherever situated, is liable to the
payment of land revenue to Government, except-
(a) such land as has been wholly
exempted from that liability by special contract with Government, or by the
provisions of any law for the time being in force;
(b) such land as is included in village
site;
(c) such land as is included in
Cantonment limits;
(d) land on which property tax under
the Punjab Urban Immovable Property Tax Act, 1958 (W.P. Act V of 1958), is
payable;
116. Revenue survey may be introduced
by Board of Revenue in any part of Province.- (1) It shall be lawful for the
Board of Revenue, whenever it may deem expedient, to direct by notification,
the survey of any land in any part of the Province with a view to the
settlement of land revenue, the preparation of record-of-rights and
preservation thereof, or for any other similar purpose, and such survey shall
be called a revenue survey.
(2) A revenue survey may extend to the
lands of any village, town, or city generally, or to such land only as may be
specified in the notification. (3) Subject to the orders of the Board of
Revenue, it shall be lawful for the officers conducting any such survey to
except any land to which it may not seem expedient that such survey should
extend.
The
2. Definitions.- In this Act-
(hhh) “urban area” means an area within
the jurisdiction of the Metropolitan Corporation, a Municipal Corporation, or a
Municipal Committee and includes any other area which the Government may, by notification,
declare to be an urban area for purposes of this Act;
6. Local areas.-
(2) For purposes of this Act, the
Government shall, by notification, demarcate and declare a local area
consisting of:
(a) Lahore District as the Metropolitan
Corporation;
(b) rural area in a District, other
than Lahore District, as District Council;
3. As per Section 4 of the Act of 1887,
the land which is occupied as the site of a town or village and is not assessed
to land revenue is expressly excluded from the ambit of the said Act, except
where doing so may be necessary for the purposes of record, recovery and
administration of village cesses. The said Act was repealed through the Act of
1967, however, a similar exclusion was provided in Section 3 thereof, wherein
the land which is occupied as the site of a town or village and is not assessed
to land revenue has been exempted from the operation of the said Act except
where its application was necessary for the purposes of record, recovery and
administration of village cesses.
4. Besides, Section 31 of the Act of 1887
dealt with the record of rights and documents included therein, providing inter
alia that there shall be a record of rights for each estate which shall, so far
as may be practicable, include statements showing the persons who are land
owners, tenants or assignees of land revenue in the estate, or who are entitled
to receive any of the rents, profits or produce of the estate or to occupy land
therein; statements reflecting the nature of the interests of such persons and
conditions attached to such interests; rent, land revenue, rates, cesses or
other payments due from and to each of these persons and/or to the Government;
a map of the estate; and such other documents as the Financial Commissioner may
prescribe with the previous sanction of the Provincial Governments. The said
Section was re-enacted with slight modification as Section 39 in the Act of
1967 which more or less contained the same requirements for entry into the record-of-rights
however the previous sanction to be acquired from the Government in order for
the Finance Minister to prescribe any additional documents was now to be
acquired from the Provincial Government instead. Specific exclusion from
payment of land revenue is given in Section 56(2) of the Act of 1967 which
provides that land included in village sites, land that has been wholly
exempted from that liability on account of a special contract with the
Government, or by the provisions of any law for the time being in force, land
which is included in Cantonment limits and land on which property tax under the
Punjab Urban Immovable Property Tax Act, 1958, is payable are all exempted from
the payment of land revenue under the Act of 1967. Additionally, Section 116 thereof
provides that a revenue survey may be conducted of any land in any part of the
Province with a view to the settlement of land revenue by the Board of Revenue
whenever it may deem such survey expedient. This revenue survey may extend to
the lands of any village, town, or city generally, or to such land only as may
be specified in the notification issued in this regard, however the Board may
through its orders exempt any land from such survey.
5. The key term used in the aforementioned
provisions is “land”, which has neither been defined in the Act of 1887 nor the
Act of 1967, therefore, the same is liable to be construed from other relevant
statutes and/or in light of its ordinary dictionary meaning. As per Section
4(1) of the Punjab Tenancy Act, 1887, “land” means “land 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 sites of buildings and other structures on such land”.
The term “land” has also been defined in the Land Reforms Regulation, 1972, to
mean land which is not occupied as the site of a town, village, factory or
industrial establishment, and is occupied or has been or can be let for agricultural
purposes allied or subservient to agriculture and includes the sites of
buildings and other structures on such land. The term “land” has been defined
in Section 2(3) of the Punjab Alienation of Land Act, 1900 to mean, “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
land-owner to a superior land-owner; (d) a right to receive rent; (e) any right
to water enjoyed by the owner or occupier of land as such; g) any right of
occupancy; and (g) all trees standing on such land”. As per the judgment of
Ghulam Rasul v. Ikram Ullah (PLD 1965 Lahore 429), relying on Vir Bhan and
another v. Sham Singh and others (AIR 1944 Lahore 455) it was held that the
term “land” in Section 141 of the Punjab Land Revenue Act (XVII of 1887) has a
special and restricted meaning and does not comprise site assessed to land
revenue on which buildings with structures of a permanent character have been
constructed.
6. Adverting to the dictionary meanings of
“land”, according to Black’s Law Dictionary (Ninth Edition), it means “an
immoveable and indestructible three-dimensional area consisting of a portion of
the earth’s surface, the surface above and below the surface, and everything
growing on or permanently affixed to it. An estate or interest in the real
property”. In Chambers 21st Century Dictionary it is defined as “the solid part
of the Earth’s surface as opposed to the areas covered by water” and “ground
that is used for agriculture”. As mentioned in Wharton’s Law Lexicon
(Fourteenth Edition) “the word land used in its generic terms comprehends every
species of ground, soil, or earth or whatsoever as meadows, pastures, woods,
moors, waters, marshes, furze and heath. It includes also houses, mills,
castles and other buildings for the conveyance of the land the structure upon
it also passes.”. From the above dictionary as well as statutory definitions,
it is established that the term land includes within its meaning buildings and
structures etc., and thus includes land falling within the ambit of Punjab
Urban Immoveable Property Tax Act, 1958. Therefore, the exemption to such land
to payment of land revenue under Section 56(2) of the Act of 1967 applies to
all such urban property falling within the ambit of the said Act.
7. Section 4 of the Act of 1887 has been
explained by Om Prakash Aggarwala in the third edition of his commentary
thereof as under:-
”It is usual to measure the village
site in one number, together with the small plots attached in which cattle are
penned, manure a stored, and straw is stacked, and other waste attached to the
village site. The entry in the column of ownership and occupancy is simply
abadi deh. In the shajras this number is inked in red so that in common
parlance abadi deh is known as the area within the lal lakir.
Land included within Municipal limits:
- It must not be assumed that merely because a definite area of land which is
not assessed with land revenue happens to have been included, for jurisdictional
purposes within the limits of a Municipal Committee, ipso facto becomes the
site of a town, and the act of including it within Municipal limits makes it
the site of a town or village within the meaning of section 4 of the Land
Revenue Act, so as to oust the jurisdiction of the revenue officer over such
land. Every case must be decided on its merits [Jiwa v. Karam Baksh 1925
L.L.T3=1925 P.C.L.I (Rev.)]
Thus, it is clear that any
land that is occupied as the site of a town or village and is not assessed to
land revenue is exempt from the operation of the provisions of the Act of 1967.
However, as is evident from the above commentary (regarding Section 4 of the
1887 Act in India which is pari materia to Section 3 of Act of 1967), every
case must be decided on its merits and the mere inclusion of a certain area
within a town/village for jurisdictional purposes does not trigger the
exemption from land revenue under the law. For instance, the construction of a
house on one single field does not convert land otherwise subject to land
revenue, into the site of a town or village. Similarly, where the area is under
fluctuating assessment and if during the currency of a settlement of a
particular part of the land is used for purposes other than agriculture, it is
not excluded under Section 3(1) of the Act of 1967.
8. Further to the foregoing discussion,
the definition of the word “estate” under Section 3(1) of the Act of 1887 must
be noted which includes (1) any area for which a separate record-of-rights has
been made; (2) or which has been separately assessed to land revenue; or (3)
would have been so assessed if the land-revenue had not been released,
compounded for or redeemed; or (4) which the Provincial Government may, by
general rule or special order, declare to be an estate. The same definition of “estate”
has been given in Section 4(9) of the Act of 1967. Reference in this regard may
be made to paragraph No.123 of Douie’s Settlement Manual (Fourth Edition issued
in 1930), wherein the terms mauzas or villages and mahals or estates have been
explained as under:-
123. Mauza or villages and mahals or
estates.- Before describing the village community it will be convenient to
explain exactly what is meant by the two terms mauza, which is usually translated
“village,” and mahal, of which the English equivalent is “estate. “ A mauza is
defined by Mr. Thomason as “a parcel or pastels of land having a separate name
in the revenue records and known limits,” and a mahal as “any parcel or parcels
of land which may be separately assessed with the public revenue, the whole
property of the persons settled within the mahal being held hypothecated to
Government for the sum assessed upon it.” There are two elements in this
definition, the separate assessment and, where more than one person own the
same estate, their joint responsibility for the payment of its revenue. “Village”
is not defined in the Land Revenue Act, but the meaning of “estate” is
explained to be “any area-
(a) for which a separate record of rights
has been made, or
(b) 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 a leased, compounded for, or
redeemed, or
(c) which the Local Government may, by
general rule or special order, declare to be an estate.”
The joint responsibility of all the
landowners of an estate for its
revenue
is provided for in section 61 of the Act. In practice it is
rarely
enforced. A rule made under clause (c) of the section quoted above declares “all
demarcated areas of uncultivated and forest land owned by Government” to be
estates.
A village, as a rule, consists of a
single block of land. But occasionally the whole of its land does not lie in a
ring fence, and some outlying fields are found mixed up with the lands of
another village.
Thus, there remains no
ambiguity in the determination that an “estate” means any area for which either
a separate record-of-rights (jamabandi) has been prepared or which has been
treated separately for an assessment or which has been declared to be an estate
by the Provincial Government. An “estate” or “mahal” is somewhat different from
a village or mauza. Although, according to the judgment reported as Jamil and 5
others v. Sheerin and 3 others (2011 YLR 1083) passed by the learned Peshawar
High Court, the connotation of word “estate” employed in Section 4(9) of the
Act of 1967, does not mean that it consists of village or mauza or gaon or
pind; generally an estate or mahal is identical to a village or mauza but an
estate may include more than one villages, and a village may be divided into
two estates. Furthermore, as per the judgment reported as Muhammad Khan v.
Ghulam Rasool and another (1999 YLR 2688), the Supreme Court of AJ&K held
that the term “estate” is a legal expression which forms the unit for revenue
assessment, an estate or mahal is different from a village or mauza, however,
generally an estate is a mahal which is assessed to revenue.
9. Under the provisions of Section 3(1)
and (2) read with Section 116 of the Act of 1967, the maintenance of record of
rights in cities and towns is also the function of the Board of Revenue for
which it issues directives from time to time under various provisions of the
said Act. In this regard, it is pertinent to note the judgment of the learned
High Court reported as Pervez Ahmad Khan Burki and 3 others v. Assistant
Commissioner, Lahore Cantt. and 2 others (PLD 1999 Lahore 31) wherein the
following was held:-
”4. Having heard the learned counsel
for the parties and perused the record, I am of the view that the contentions
raised on behalf of the petitioners are unexceptionable. Undoubtedly
respondents Nos.2 and 3 are functionaries appointed under the Punjab Land
Revenue Act, 1967 to carry out the purposes of the aforesaid Act. The preamble
to the Act recites that it was being framed to consolidate and amend the law
relating to the making and maintenance of records-of-rights, the assessment and
collection of land revenue, the appointment and functions of revenue officers
and other matters connected therewith.
According to section 3 of the Act,
except for certain fiscal purposes, nothing in the Act applies to land which is
occupied as a building site or such land on which permanent structures have
been raised; it loses all characteristics of. A agriculture land and the
dispute as regards the partition of such land has to be resolved through the
In the judgment reported
as Dr. Jalal Khan v. Qazi Naseer Ahmed, District Deputy Officer, (Revenue),
Kharian, District Gujrat and 6 others (2005 MLD 814) the Lahore High Court held
as follows:-
5. 1 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.
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.
In the case of Khizar
Hayat and another v. Pakistan Railway through Chairman, Pakistan Railway,
Lahore and 2 others (2006 CLC 1028) the Lahore High Court opined that:-
5. ...It is not disputed between the
parties that suit properties are no more agricultural land and are building
sites, located within the municipal limits of Khushab. Such properties could
not have been demarcated by the officials working in revenue hierarchy under
West Pakistan Land Revenue Act, 1967, as its section 3, excluded land kept as
site of a town or village from its operation. Language of the provision of law,
under discussion, accepts no ambiguity that demarcation of land kept/used as a
building site could not have been done under the provisions of Act of 1967,
which was A subject to their process only for certain restricted physical
purposes like recovery of land revenue etc. In forming this view, I have to my
credit a chain of judgments including the cases of Ghulam Rasul v. lkram Ullah
and another PLD 1965 (W,P.) Lah. 429; Tahir Hanif v. Member, Board of Revenue
and others 1982 CLC 1732; Syed Aslam Shah and 3 others v. Mst. Sakina and
another 1988 MLD 1596 and Pervez Ahmed Khan Burki and 3 others v. Assistant
Commissioner, Lahore Cantt. and 2 others PLD 1999 Lah. 31.
The Lahore High Court
held, in the judgment reportcd as Muhammad Muneer and 7 others v. Member Board
of Revenue, Punjab, Lahore and 12 others (2009 MLD 930), that:-
”8. ...The land which is excluded from
operation of Land Revenue Act, is described in section 3 of Act, 1967...
9. The above provision reflects that
Act, 1967 will not apply to the land, which is kept as site of town or village
and is not assesseed to land revenue. Revenue authorities proceeded with
partition of joint land, as there was no objection to the title of owner. The
objection of the petitioners, that Killa Nos. 13/3 and 16 in square No.15, are
residential and fall under boundary wall of Abadi, were turned down on the
ground that change in the classification of land took place through Khasra
Grdawari during the period of Rabi 2005, when the partition proceedings were
pending. No interference in such finding is justified as the Revenue Officer
has proceeded in the matter, as per entries in the revenue record, as they
existed at the time of filing of the application for partition. Any subsequent
change is immaterial. The land, as per Revenue Record, was assessed to land
revenue, therefore, the respondent had rightly proceeded in the matter of
partition.”
In the case of Makhdum Raju
Shah v. Member Board of Revenue, Punjab and 17 others (2011 YLR 1724) the
Lahore High Court held as follows:-
7. It is an admitted fact between the
parties that property is ‘Abadi Deh’ and is not an agriculture one. The only
question require resolution is whether Tehsildar was competent to entertain the
application of partition of land situated in ‘Abadi Deh’ or not? Under section
3 of West Pakistan Land Revenue Act, 1967, the
”(3) Exclusion of certain land from
operation of this Act.-
8. The perusal of this provision of law
shows that important word is land. The word “land” has not been defined in the
West Pakistan Land Revenue Act. This term, therefore, has to be construed
according to the ordinary dictionary meaning. Under the Punjab Tenancy Act,
1877 “land” has been defined in the following terms:-
”Land which is not occupied as the site
of any building in a town or village and is occupied or has let for
agricultural purposes or for purposes subservient to agriculture or for pasture
and includes the sites of buildings and other structures on such lands”.
9. The term “land” under Land Reforms
Regulations, 1972 means which is not occupied as the site of a town, village,
factory or industrial establishment and is occupied or has been or can be let
for agricultural purposes allied or subservient to agriculture and includes the
sites of buildings and other structure on such land.
10. Section 2(3) of the Punjab
Alienation Act defines the term “land” as under:-
”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 the sites of buildings and other
structures on such land; a share in the profits of an estate or holding; any
dues or any fixed percentage of the land revenue payable by an inferior
land-owner to a superior land owner; a right to receive rent; any right to
water enjoyed by the owner or occupier of land as such; any right of occupancy;
all trees standing on such land”
11. From the perusal of above said
provision of law the definition of agricultural land is its agricultural or
pasture character.
12. As this is not dispute between the
parties that land in dispute is not situated in ‘Abadi Deh’ and the parties are
using the said land for residential purposes, the jurisdiction of Tehsildar
with reference to its partition in terms of section 3 of West Pakistan Land
Revenue Act, 1967 was barred, this shows that original order dated 26-3-1996
passed by the Tehsildar was without jurisdiction. It is a settled principle of
law that an order passed by a Court not competent to pass is a void order and
against void order the bar of limitation is not applicable.
The Peshawar High Court
has held in the case of Muhammad Ayaz and others v. Malik Zareef Khan and
others (PLD 2016 Peshawar 8) that:-
11. Let us first see the forum of
revenue hierarchy provided under the Act of 1967. In this regard, the
jurisdiction and procedure for partition of undivided immovable property is
vested in the Revenue hierarchy under the enabling provisions of sections 135
to 150 of the Act of 1967. What is important to note is that section 3 of the
Act of 1967 determines the area coming within the purview and jurisdiction of
the Revenue hierarchy. The said provision reads:
”Section 3. Exclusion of certain land
from operation of this Act...
The aforementioned provision clearly
provides that as far as non-applicability of Act of 1967 is concerned, it would
extend to the area, which is neither within the Site of Village nor paying land
revenue. It is also important to note that with time the appropriate Officer
would alter the Site of Village and include the areas, which has with time
become Abadi in the Mauza and accordingly the said area would be included and
recorded within the red line of the Site of Village in the revenue record.
12. While in cases of undivided
immovable property, which falls outside the express domain of the Revenue
hierarchy as provided under section 3 of the Act of 1967, the jurisdiction for
partition thereof would vest in the ordinary
In 1942, under Section
31(2)(d) ibid, the Financial Commissioner,
10. At this stage, it is to be noted that
certain provisions of the Act of 1882, such as, Section 54 (sale), Section 59
(mortgage), Section 107 (lease), Section 118 (exchange) and Section 123 (gift)
were applicable to urban areas of Punjab since 1974 (and even earlier).
Besides, the transfer of land in urban areas could only be made through
registered deeds under the Act of 1908. The registered deeds pertaining to land
form the basis of mutations under Section 42 of the Act of 1967 by the revenue
field staff and under Section 42-A thereof at the Arazi Record Centre
functioning under the Punjab Land Records Authority.
11. Another important statute which is
relevant for the issue in hand is the West Pakistan Urban Immoveable Property
Tax Rules, 1958 (Rules of 1958), whereunder the assessing authority of the
Excise and Taxation Department is required to prepare a property register in
Form P.T.1 for the rating area and enter therein the necessary particulars,
separately for each unit of property. The assessing authority is also required
to ascertain the name of the owner and the occupier, if any, of the property
and note the same in Register P.T.2.
12. As per Section 56 of the Act of 1967
certain lands are exempt from the payment of land revenue. This Section
provides, inter alia, that all land, to whatever purpose applied and wherever
situated, is liable to the payment of land revenue to the Government, except
such land as is included in a village site, Cantonment limits, or on which
property tax under the Punjab Urban Immovable Property Tax Act, 1958 is payable.
However, land revenue was abolished through the Punjab Land Revenue (Abolition)
Act, 1998, Section 2 whereof provides that notwithstanding anything to the
contrary contained in the Act of 1967 or any other law (for the time being in
force), no land revenue, as defined in the Act of 1967, shall be charged.
13. The instructions of the Board of
Revenue, Punjab contained in Paragraphs 7.40, 7.45, 7.46 and 7.57-A of the
(1) In case of estate which is partly
within Cantonment limits, Municipal Committee or Town Committee, Register
Haqdaran Zamin should be prepared in parts, namely (a) for rural lands, and (b)
for urban lands.
(2) For Colony Town/Chaks see form
namely, “Register Haqdaran Zamin Abadi” (Patwari/Tepedar Standard Form
No.XXXIV-B). This form will be used where the land in a Colony Town/Chak has
been built upon.”
Paragraphs 7.45 and 7.46
ibid deal with Jamabandi Abadi for
14. In this regard, it is to be noted that
in supersession of the earlier Office Memo dated 31.07.1965, the Government of
Pakistan through the Revenue Department, issued the following Memorandum
bearing No. 3417-68/ 1203(S) dated 8.7.1968:-
”To
All Commissioners in
(except
All the Deputy Commissioners in the
(except
Memorandum No. 3417-6811203-(S).
Dated the 8th July, 1968
Subject:
Exemption from the payment of land revenue and abandonment of revenue records
in the respect of lands located within “rating areas” of the Urban Immoveable
Property Tax Act.
Reference:
In supersession of this office memo No.321- 65/1958-(S), dated 31” July, 1965,
on the above subject.
Memorandum:
Under Section 56(1)(d) of the West
Pakistan Land Revenue, Act, 1967 Land on which Property Tax under the West
Pakistan Urban Immovable Property Tax Act, 1958 (West Pakistan Act-V-I958), is
payable, is exempt from the assessment of Land revenue. This Act came into
operation in the Province with effect from 1” January, 1968. In view of the
above provision, in the Act, the instructions issued in the memorandum under
reference stand superseded. You are, therefore, requested kindly to direct the
field staff not to assess, land revenue with effect from Rabi 1968 in respect
of properties which are subject to assessment of Property Tax.
2. The shortfall in revenue due to the above
orders should please be reported for the information of Finance Department.
3. So far as the preparation of record
of rights in the Rating Area is concerned it has been decided that the
instructions contained in paragraph 2 of Board of Revenue’s memorandum No.
3210-65/1859-(S), dated 31st July 1965, should be followed with a light
modification as under. Only the existing staff should however, be employed for
this work and no additional staff be entertained.
i) The practices of maintaining revenue
records in Rating Areas may continue as before. All transactions which have
been completed after 8th July, 1968, should be incorporated in the revenue
records. If a piece of land has since been sold or otherwise transferred any
number of times the mutations of all the transactions should be recorded,
datewise.
ii) Areas which have been built up may be
treated as Abadi Deh’ for the purposes of revenue records and further
maintenance of record in respect thereof should be discontinued. It may be made
clear that only those Khasra/Survey numbers should be treated as Abadi Deh,
which have entirely been covered by construction. It would not be advisable to
treat a portion of a field number as Abadi Deh and discontinue further
maintenance of records in respect thereof
iii) If a field/survey number is covered by
buildings, it would not be necessary to change entries in Jamabandi (Revenue
records) forthwith, but new entries may be made at the time of preparation of
the next quadrennial Jamabandi (revenue Records). At the time of revising the
quadrennial Jamabandi (Revenue records) the Tehsildar/Naib Tehsildar concerned
should personally inspect the existing Abadi Deh and compile a report about the
field/ survey numbers which were covered by buildings during the last four
years. He should then submit a proposal to include that area in the Abadi Deh,
for orders of the Collector. After obtaining the orders of the Collector the
Tehsildar/Naib Tehsildar should make entries in the new Jamabandi (Revenue
Records) by sanctioning a mutation accordingly.
If any difficulty is experienced in the
implementation of the above instruction, a reference may be made to the Board
of Revenue for clarification.
Sd/-
Deputy Secretary to
Government, West Pakistan Revenue Department”
In the above Memorandum,
being conscious of the fact that under Section 56(1)(d) of the Act of 1967, the
land on which property tax is payable under the West Pakistan Urban Immovable
Property Tax Act, 1958 is exempt from the assessment of land revenue, the
Government has clarified the precise legal position to the extent of the
exemption from the payment of land revenue and abandonment of revenue records
in respect of lands located within “rating areas” of the Urban Immoveable
Property Tax Act, 1958. In the said Memorandum, specific directions were issued
that the areas which have been built up should be treated as ‘abadi deh’ for
the purposes of revenue records and further maintenance of record in respect
thereof should be discontinued. However, it was made clear that only those
khasra/Survey numbers should be treated as abadi deh, which have entirely been
covered by construction; whereas, a portion of a field number would not to be
treated as abadi deh and further maintenance of records would not be
discontinued in respect thereof. Besides, it was further directed that if a
field/survey number is covered by buildings, it would not be necessary to
change entries in jamabandi (revenue records) forthwith, but new entries would
be made at the time of preparation of the next quadrennial jamabandi (revenue
records). At the time of revising the quadrennial jamabandi (revenue records)
the Tehsildar/ Naib Tehsildar concerned would personally inspect the existing
abadi deh and compile a report about the field/survey numbers which were
covered by buildings during the last four years. He should then submit a
proposal to include that area in the abadi deh, for orders of the Collector.
After obtaining the orders of the Collector the Tehsildar/Naib Tehsildar should
make entries in the new jamabandi (revenue records) by sanctioning a mutation
accordingly.
18. It is to be noted that the terms “urban
area” and the “local area” have been defined in Section 2(hhh) and Section 6(2)
of the Punjab Local Government Act, 2013. The “urban area” means an area within
the jurisdiction of the Metropolitan Corporation, a Municipal Corporation, or a
Municipal Committee and includes any other area which the Government may, by
notification, declare to be an urban area for purposes of this Act and the “local
area” means the area notified, demarcated and declared by the Government for
purposes of this Act as a local area, consisting of Lahore District as the
Metropolitan Corporation; and rural area in a District, other than Lahore
District, as District Council.
19. From the above, it is clear that land
not subject to land revenue, which has been enclosed within Municipal limits,
does not ipso facto become the site of a town. Meaning thereby that from mere
inclusion of a certain area for purposes of jurisdiction within the limits of a
Municipal Committee it could not be presumed that it has become the site of a
town or village within the meaning of Section 3 of the Act of 1967. However,
the `land’ falling within the site of a town or village, if it is not assessed
to land revenue then it stands excluded from operation of the Act of 1967 in
terms of Section 3 thereof according to the ratio the Lahore High Court
judgment of Dr. Jalal Khan v. Qazi Naseer Ahmed, District Deputy Officer (Revenue)
(2005 MLD 814). The revenue officer does not have any jurisdiction to entertain
an application for partition of the property which has ceased to be land,
notwithstanding the fact it continues to be assessed to land revenue as per
Ghulam Rasul v. Ikram Ullah judgment (supra) and Syed Aslam Shah v. Mst. Sakina
(1988 MLD 1596). According to the ratio of Pervez Ahmad Khan Burki and others
v. Assistant Commissioner and others (PLD 1999 Lah 31) the revenue, authorities
have no jurisdiction to carry out demarcation of property which formed part of
a bungalow.
20. In light of the above discussions as
well as the ratio decidendi there is no doubt in our minds that the land/estate
located within “rating areas” of the Punjab Urban Immoveable Property Tax Act,
1958, is exempted from the payment of land revenue and the revenue authorities,
i.e. Patwaries, Kanungos, Tehsildars etc., are not authorized to enter
mutations of alienation of property etc., in their record. We, therefore, hold
that under the law, any urban area in Lahore or otherwise within Punjab which
falls within the ambit of the Punjab Urban Immoveable Property Tax Act, 1958,
are not subject to land revenue and hereby issue directions to the revenue
authorities to refrain from any and all functions (to the extent that these are
within the ambit of the Punjab Urban Immoveable Property Tax Act, 1958) in the
said areas particularly with regards to entering mutations, etc. Since the
revenue authorities of the
21. These are the reasons of our short
order of even date, which reads as under:-
”For the reasons to be recorded later,
it is held that all the urban areas to which the Land Revenue Act, 1967 does
not apply shall be governed by the Transfer of Property Act, 1882 (Transfer of
Property Act) and the Registration Act, 1908 for the purposes of transfer of
property or devolution of any rights in property. No oral mutations for the
purposes of the transfer of property shall be valid in law in such urban areas
(which have become part of settled areas including municipalities, towns,
etc.). The patwaar khanas or revenue records can only be maintained for record
keeping and not for the transfer of property under any of the modes recognized
by the Transfer of Property Act or any other law prevalent at the time.
Disposed of accordingly. “
MWA/R-5/S Order
accordingly.
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