2011 PLP 972 (YLR)

MUHAMMAD NASEEM AKHTAR KHAN, J.

Through this constitutional petition the petitioner has challenged the orders dated .2-9-1999, 18-8-1999 and 16-3-1999 passed by respondents Nos.1 to 3 respectively, being illegal, without lawful authority and ineffective upon the rights of the petitioner and the same are liable to be set aside.

2. Brief facts of the case are that the Evacuee-Trust-Land (Lot No.6) comprising 13 Acres, 6 Kanals and 4 Marlas situated in Mauza Lal Bhatti, Tehsil Khairpur Tantewali District Bahawalpur was leased out through open auction on 25th of May, 1993 to the husband of the petitioner namely Muhammad Asian son of Sher Muhammad for a period of three years i.e. Kharif 1993 to Rabi 1996 being the highest bidder in the open auction. Muhammad Aslant lessee vide his application dated 29-1-1996 applied for transfer of the lease holding rights in favour of his wife Mst. Nazir Mai, and the request of the petitioner was approved by the Deputy Administrator vide his order dated 4-2-1996 in the terns of section 18(c) of the scheme. Muhammad Aslam on behalf of his wife applied for extension of lease holding rights in favour of his wife from Kharif 1996 to Rabi 1999 (for three years) under the scheme but the said application was dismissed by the Assistant Administrator Evacuee Trust Property, Bahawalpur vide impugned order dated 16-3-1999. Time petitioner tiled Writ Petition No.1952/99, which was dismissed by this court vide order dated 3-5-1999 being premature. Consequently, the petitioner tiled an application before respondent No.2, which was dismissed on 16-3-1999 and appeal before respondent No.3 was also dismissed on 18-8-1999. Ultimately to avail the departmental remedy the petitioner filed revision before respondent No.1, which too was dismissed in limine vide order dated 2-9-1999. Thereafter, respondents Nos.1 to 3 put the land in question for auction and the same was allotted to respondent No.4 through auction. Hence, this writ petition.

3. Learned counsel for the petitioner has. contended that the disputed land was originally leased out to the petitioner's husband and the lease rights were transferred to the petitioner and she deposited double amount of lease money in compliance with condition No.18(c)(iii) and she never violated the conditions of lease but the Assistant Administrator refused to extend the lease vide his order dated 16-3-1999 on the erroneous view that the lease was transferred in the petitioner's name only for the un expired period of the lot and the application, appeal and revision tiled by the petitioner were illegally rejected on the presumption that the lease was transferred only for the un expired period in spite of fact that the petitioner deposited money and paid transfer fee equal to four times of the existing annual rate of lease money. It is added that the petitioner accepted a periodical increase of 30% in the rate of lease money after every three years. He further submits that respondents Nos.1 to 3 have based their decisions solely on letter dated 21-3-1996 issued by the Secretary (with approval of the Chairman of the Evacuee Trust Property Board, Government of Pakistan) in spite of the fact that the said letter has been withdrawn on 21-3-1996.

4. The writ petition is vehemently resisted from the side of the respondents/Auqaf Department with a contention that lease was never extended in favour of the petitioner and as such she is illegal occupant and amounts paid by the petitioner are "Zar-i-Muavaza" and not "Zar-i-Patta"

5. Arguments heard. Record perused.

6. After considering the respective contentions of the parties it conies out that lease was never extended in favour of petitioner by the competent authority and she is illegal occupant. The amounts deposited by the petitioner could not be termed as lease money, which is being deposited by the petitioner on the basis of self-styled extension of lease, which is not warranted by law. Section 18(a) and section 18-b of the Scheme for the Lease of Evacuee Trust, Agricultural Land 1975 reads as follows:-- 18. (a) The Chairman, Evacuee Trust Property Board shall be competent to extend the lease rights in the name of widow and legal heir(s) of the deceased, provided:- (i) That the deceased lessee has been continuously cultivating the land since 1974 18. (b) The lease rights of the land on lease with the cultivators continuously since Kharif 1974 onwards may be allowed to be transferred by the Deputy Administrator or Assistant Administrator concerned subject to the following conditions:"

7. In view of the above-mentioned provisions, the petitioner is not entitled to retain the possession of the property as lessee because: (i) Muhammad Aslam lessee husband of the petitioner is alive. (ii) Petitioner or her husband has not been in continuous cultivating possession since 1974. (iii) In the presence of original lease-holder question of transfer of land does not arise. If any order has been passed, the same is illegal. (iv) The petitioner and her husband are taking illegal benefit of the disputed property for the last 14 years. (v) The case-law cited as 2010 SCMR 1078 and 2007 SCMR 262, is not applicable to the facts and circumstances of this case because the same relates to ascertain the status of any property. (vi) It is a settled law that one who seeks equity must do equity whereas an illegal occupant is not entitled to have any discretionary relief. (vii) There is no illegality or irregularity in the impugned orders. (viii) State property can be given on lease through auction in accordance with law in order to save the State from any financial loss and also get benefit according to market rate.

8. For what has been discussed above, no case is made out in favour of the petitioner to invoke the constitutional jurisdiction of this Court. Hence the writ petition, in hand, is hereby dismissed. A.R.K./N-108/L Petition dismissed.