2013 PLP 28 (MLD)

SHAH JEHAN AKHUNDZADA, J.

This writ petition on remand from the Hon'ble Supreme Court of Pakistan has been received against the judgment dated 14-5-2003 of this Court passed in Writ Petition No.484 of 2000 for decision afresh on merits.

2. Facts relevant for the disposal of this writ petition are that the petitioner is a lessee/owner of the Bungalow No.47, Rehman Road Nowshera Cantt. Her mother applied to the Quarter Master General, Rawalpindi seeking permission for sub-division and conversion of Cantt. code lease into Regular lease under Cantonment Land Administration Rules, 1937 through application dated 9-5-1984. In response to the said application Quarter Master General vide order dated 3-9-1987 sanctioned the sub-division and directed the MEO to complete all the formalities of Regular lease to the petitioner and also to sub-divide of the property at the earliest. The said MEO vide letter No.CN-323/23, dated 19-12-1987 informed the mother of the petitioner, namely, Mst.Wajahat Begum about the sanction and asked for her willingness certificate and also for the surrendering of the 14th area of the said bungalow No.47. In the meanwhile, the property was gifted to the petitioner, therefore, the petitioner submitted willingness certificate to the MEO, Peshawar on 20-9-1988, she under the instructions of the MEO also submitted the surrender deed to MEO, Peshawar, copy of the said is placed on file as Annexure Dl respectively. Since the year, 1988 no further step in this regard was taken by the respondents. The surrender deed of the original site was not sanctioned by the competent authority so far as required by the department letter dated 16-5-1940 and subsequently letter was issued on the subject time and again. The surrender deed submitted by the petitioner has not been acted upon, so far and no sub-division of the property was effected on the spot in compliance of the said surrender deed and the petitioner is still in physical possession of the whole bungalow as one unit.

3. After inquiry the MEO, Peshawar recommended the case to the Regional Director, Military Lands and Cantonment, respondent No.5 with the proposal for approval to respondent No. 2 vide letter dated 10-11-1999. Ultimately, the MEO, Peshawar respondent No.1 informed the petitioner vide letter dated 4-2-2000 that the case of the petitioner has been rejected on the ground that the settled cases are not to be re-opened under the new policy. The petitioner again approached to respondent No.2 through an application dated 7-2-2000 for consideration of the petitioner's case as not a settled and disposed of case. Respondent No.2 vide letter dated 13-3-2000 rejected the representation of the petitioner. 3(sic) The petitioner has now challenged the said proceedings through this constitutional petition with the prayer that the same may be declared as illegal, without jurisdiction, of no legal effect and without lawful authority.

4. On 25-5-2000 the respondents were directed to file comments to the writ petition and the same were furnished to which the petitioner has also filed rejoinder. On 14-5-2003 during the course of hearing learned counsel for the petitioner stated at the bar that the petitioner is ready to pay the due remaining premium minus already paid in terms of the Policy dated 17th July, 1999 and in response to it the then learned Deputy Attorney General along with one Amanullah Khan representative of the MEO stated that the respondents are prepared for the regularization of the lease of the petitioner provided he pays the due premium in accordance with the new policy and after the above development between the parties the Division Bench of this Court disposed of the writ petition in the following terms:- "In view of the matter, there is no controversy remained between the parties and the writ petition is disposed of accordingly". 4(sic) Feeling aggrieved from the aforesaid order, the respondents filed Review Petition No.33 of 2003 on the ground that the above named representative was not authorized to make any concessional statement but this Court on 10-9-2003 dismissed the said petition. Still feeling dis-satisfied with the above order, the respondents filed Civil Petition No.738-P of 2003 and the apex Supreme Court of Pakistan vide order dated 22-3-2010 accepted the same and passed the following order:-- "For the foregoing reasons, this petition is converted into appeal and the same is allowed. The impugned judgment as well as the judgment dated 14-5-2003 are set aside. The case is remitted to the Peshawar High Court for decision on merits of the Writ Petition No.484 of 2000, which shall be deemed to be pending."

5. On 9-2-2012 both the learned counsel for the parties desired to file written arguments in order to better assist the court as the matter is pretty old one. They were allowed to do so and they filed written arguments accordingly.

6. We have gone through the written arguments filed by both the parties and have also gone through the record of the case.

7. It transpired from the record that Bungalow No. 47 comprising survey No.323 measuring an area of 1.510 acres Nowshera Cantt. was held leased by way Cantt. code lease for indefinite period in the name of Mst. Naseem Akhtar daughter of Mian Shehzada in the record of the office of the respondents and then an undertaking was also placed in the same file stating therein to obey all the terms and conditions of the lease. In the year 1982 she requested for sub-division of the site and in this connection NOC was issued subject to surrender 25% area in favour of the Government vide GHQ QMS's Branch Rawalpindi Letters Nos.3605/218/45 and 47/Tg-I (JANCC) dated 3-9-1987, copy of which is available on file and thus surrender deed was executed vide No.372 Bahi. No.1 Vol: No.96 Page 321 dated 1-10-1988 on behalf of Mst.Nasim Akhtar petitioner, copy of which is also available on the file. There after a willingness certificate signed by the petitioner owner of the plot copy available on file wherein she stated that she is willing to surrender 25% area measuring 15323 Sq ft. of the total land of the suit bungalow and also assured the concerned authority that she will take no objection in future for any kind of litigation in this regard. There after physical possession of the surrendered area i.e. 15323 sq.ft was handed over to GE (army) Nowshera Cantt in the presence of representative of MEO on 29-4-1989 and the same land was re-classified from B-3 to A-1 and allotted there to subsidiary Survey No.323/A. All these formalities as is evident from the record completed up to the year 2000. However, after completion of the above formalities she filed this writ petition. Hence it is an admitted fact that the petitioner has given willingness certificate and has also handed over physical possession of 1/4 share in the said bungalow to the respondents and in this regard handing and taking over certificate duly attested by both the parties dated 29-4-1989 is also available on the file. The land in question is still in possession of the MEO, thus in our view it is a case of past and closed transaction which cannot be re-opened being settled matter in the new policy.

8. Resultantly, writ petition in hand is devoid of any merit and substance, hence is dismissed. MH/370/P Petition dismissed.