P L D 2022 Lahore 384 (PLP)

CH. MUHAMMAD IQBAL, J.

Through this writ petition, the petitioner has challenged the validity of following allotment orders:

1. Allotment order dated 24.04.2007 of land measuring 100 Kanal in favour of Superintendent, Colony Branch, Board of Revenue.

2. Allotment order dated 11.07.2007 of land measuring 100 Kanal in favour of Assistant Colony Branch, Board of Revenue.

3. Allotment order dated 24.04.2007 of land measuring 100 Kanal in favour of Private Secretary to Senior Member, Board of Revenue.

4. Allotment order dated 24.04.2008 of land measuring 200 Kanal in favour of District Officer (Revenue)/Collector, Muzaffargarh.

5. Allotment order dated 12.03.2007 of land measuring 200 Kanal in favour of Deputy District Officer (Revenue), Kot Addu.

2. Brief facts of the case as contained in the instant petition are that the petitioner being citizen of Pakistan filed the instant constitutional petition with assertions that Government of Punjab decided to allocate the land measuring 30,000/-acres for the allotment to the Military Personnel. Initially the revenue hierarchy in the year 2006 placed land measuring 1,00,000/- acres at the disposal of GHQ for its onward allotment to Military Personnel, under Army Welfare Scheme. From the above said land some Civil officials/officers of Board of Revenue, Colony Department and Irrigation Department (i.e. respondents Nos.12 to 15 and 19) got allotted different chunks of state land in their own names. Precise detail whereof is as under:- Allottee's Name Land Measuring Order dated Mutation No. Dated

1. Amjad Babar, Superintendent Colony Branch, Board of Revenue, Punjab 100-Kanals (Comprising Square No.13, Killa No.13/1 (04-Kanals), 2. 14 to 25 (96-Kanals) in Mouza Rakh Hamze Wali, Tehsil Jatoi District Muzaffargarh 24.04.2007

3. Muhammad Ashraf Yousafi EDOR Muzaffargarh 100-Kanals 756 12.05.2008 in the year 2006-07 4. 100-Kanals mutation No.270 10.05.2008 5. 100-Kanals 797 26.05.2008 6. 100 Kanals 275 26.05.2008 7.Malik Muhammad Ramzan DDOR 200 Kanals (in Chak No.503/TDA) 13.03.2007

8. Ghulam Sarwar Saqib Patwari 100 Kanals 664 20.02.2008

9. Ameer Hussain Colony Clerk Colony Branch, Muzaffargarh 100 Kanals 106 23.06.2008

10. Muhammad Shahid Colony Clerk Colony Branch, Tehsil Kot Addu 100 Kanals 156 28.07.2008 The controversy of above allotment went upto the Sr. Member, Board of Revenue, Punjab who cancelled the above said allotments of the allottees vide letter No.620-2010/357-C-IV dated 22.03.2010. This order of cancellation was communicated to all the concerned District Officers (Revenue). But in the subsequent proceedings Board of Revenue with the approval of the Chief Minister Punjab validated the allotment to Civil Officer/officials declaring the same a past and closed matter. The allotment in favour of private respondents Nos.12 to 15 and 19 under section 10(3) of the Colonization of Govt. Land (Punjab) Act, 1912 have been questioned through this petition on the ground that the said allotments are made against the law, policy which are illegal, void, ab-initio and liable to be set aside. Hence, this writ petition.

3. Learned counsel for the petitioner contends that the state land has been ruthlessly misappropriated through collusivity of official/officer of the revenue department with the allottees who virtually frustrated the cancellation order of the allotments passed by the then Senior Member Board of Revenue.

4. Conversely the learned counsel for the respondent vehemently questioned the locus standi of the petitioner to challenge the impugned orders which were rightly passed by the authority. As such the instant petition deserves dismissal with costs.

5. I have heard the learned counsel for the parties at full length and gone through the record with their able assistance.

6. Fortunately, we have a written instrument of Constitution of 1973 which according to the trichotomy of powers describes an elaborate precinct of jurisdictional domain of Legislature, Executive and Judiciary. This sacred social contractual document guarantees / safeguards the fundamental rights of the citizens of Pakistan. Admittedly every citizen has an equal right to make endeavor for improvement to his social, financial, educational status by participating and availing the benefit / opportunities emanates from the state assets. Before marching ahead toward the merits of the case it is appropriate to settle the issue of locus standi of the petitioner to initiate this public interest litigation under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 (hereinafter referred to as the "Constitution"). Admittedly the petitioner a is citizen of Pakistan and has fundamental well guarded rights elaborately described in Part II, Chapter I of the Constitution. Similarly Article 3 envisages the elimination of exploitation and Article 37 provides guarantee for promotion of social justice whereas Article 38 ordains the promotion of social and economic well being of the people. The said Provision (Article 38) is reproduced as under:- "38 Promotion of social and economic well-being of the people. The State shall: (a) secure the well-being of the people, irrespective of sex, caste, creed or race, by raising their standard of living, by preventing the concentration of wealth and means of production and distribution in the hands of a few to the detriment of general interest and by ensuring equitable adjustment of rights between employers and employees, and landlords and tenants; (b) provide for all citizens, within the available resources of the country, facilities for work and adequate livelihood with reasonable rest and leisure; (c) provide for all persons employed in the service of Pakistan or otherwise, social security by compulsory social insurance or other means; (d) provide basic necessities of life, such as food, clothing, housing, education and medical relief, for all such citizens, irrespective of sex, caste, creed or race, as are permanently or temporarily unable to earn their livelihood on account of infirmity, sickness or unemployment; (e) reduce disparity in the income and earnings of individuals, including persons in the various classes of the service of Pakistan; (f) eliminate riba as early as possible [ ;and] [(g) the shares of the Provinces in all Federal services, including autonomous bodies and corporations established by, or under the control of, the Federal Government, shall be secured and any omission in the allocation of the shares of the Provinces in the past shall be rectified.]" From the conjoint reading of the above articles if a citizen qualifies the requisite standard, he is entitled to share in the public assets for well being of his socio-economic status. Normally a person is considered as aggrieved person whose vital interest is likely to be effected by any discriminative perverse order/action of the executive authority and he may, in absence of any other swift remedy, approach this Court under Article 199 of the Constitution for redressal of the grievance of the citizen in rem. Any citizen being part of society have interest in public assets/ property which is being disposed of arbitrarily or in violation of law/policy by public functionaries, he owes a bounded obligation to agitate the issue and also to inform the legally established fora to take judicial review of such executive order on the touchstone of the constitutionality/legality of said order of the executive, as such, the petitioner who is a citizen of Pakistan is considered as an aggrieved person and he may assail the adverse order of the authority. Even otherwise once sufficient tangible, affirmative information or record is brought before the constitutional Courts who are mighty guardians of fundamental rights of the citizens as well as that of the public assets are placed under unalienable sacred bounded duty to eliminate the illegality and perversity on the order of the executive authority. This Court in a judgment cited as Arshad Waheed v. Province of Punjab and others (PLD 2010 Lahore 510) has elaborately dealt with such like matter and has resolved the controversy as under: "

36. NON MAINTAINABILITY OF THE PETITION AND THE POWER OF THIS COURT TO PROCEED FURTHER Non-maintainability of the petition on merits does not oust the jurisdiction of this court to address other violations of public law, which have come to fore during the course of arguments on the petition and after the perusal of the record. Stark violations in the disposal and transfer of public property and heartless breach of public trust by the public functionaries (public trustees) cannot be over looked. This Court is under oath to preserve, protect and defend the constitution and in all circumstances do right to all manner of people without fear and favour. For the Court to dismiss the petition on the ground of maintainability alone would not only result in failure of justice, it would also make the Court and its constitutional jurisdiction hostage to technicalities, which cannot be allowed. Once grave violation of law and transparency in the disposal/transfer of public property comes before this court, it transforms the lis into public interest litigation conferring inquisitorial jurisdiction on this Court. No constitutional court can shy away from fully discharging this responsibility. It is useful here to revisit Article 199 (1) (a) (ii) of the Constitution, which provides that on an application of the aggrieved person, the court can make an order "declaring that any act done or proceedings taken within the territorial jurisdiction of the Court have been done or taken without lawful authority and is of no legal affect". Again under Article 199 (1) (c) this court can "make an order giving such directions to any person" within territorial jurisdiction of the Court for enforcement of fundamental rights conferred under the Constitution. These are loud reminders of the jurisdictional expanse enjoyed by this Constitutional Court. This Court is, therefore, at all times equipped with the jurisdiction to probe into any public wrong affecting public at large, when the same has come before it through a petition. It does not matter if the said wrong has been specifically agitated or has coincidentally surfaced during the proceedings. This jurisdiction should not be confused with suo motu jurisdiction exercised by the august Supreme Court of Pakistan under Article 184 of the Constitution, as in the present case jurisdiction of this court has been invoked through a petition placed before the Court by an aggrieved party. I, therefore, proceed further to assess if the Joint Venture Agreement entered into between PUNJMIN and ERPL passes the test of law and transparency. .. ..

49. The disposal or transfer of public property without public participation is abuse of public trust. Public Property sold or transferred behind closed doors by public functionaries to some select few undermines the venerated role of trusteeship. Good governance is fundamentally pillared on trust and confidence of the people in the government, public institutions and more importantly in the public functionaries at the helm of the affairs. If this public trust is hemorrhaged, the entire edifice of public administration loses its credibility, which weakens governments and discredits democracy.

50. In "Shri Sachidanand Pandey and another v. The State of West Bengal and others", (AIR 1987 SC 1109) at p.1133, O. Chinnappa Reddy, J. after considering almost all the decisions on the subject summarized the propositions in the following terms:-- "On a consideration of the relevant cases cited at the bar the following propositions may be taken as well-established: State owned or public owned property is not to be dealt with at the absolute discretion of the executive. Certain precepts and principles have to be observed. Public interest is the paramount consideration. One of the methods of securing the public interest, when it is considered necessary to dispose of a property, is to sell the property by public auction or by inviting tenders. Though that is the ordinary rule, it is not an invariable rule. There may be situations where there are compelling reasons necessitating departure from the rule but then the reasons for the departure must be rational and should not be suggestive of discrimination. Appearance of public justice is as important as doing justice. Nothing should be done which gives an appearance of bias, jobbery or nepotism".

51. In "Haji T.M. Hassan Rawther v. Kerala Financial Corporation" (AIR 1988 SC 157) Jagannatha Shetty speaking for the Supreme Court of India said:-- "The public property owned by the State or by any instrumentality of the State should be generally sold by public auction or by inviting tenders. This Court has been insisting upon that rule, not only to get the highest price for the property but also to ensure fairness in the activities of the State and public authorities. They should undoubtedly act fairly. Their actions should be legitimate. Their dealings should be above board. Their transactions should be without aversion or affection. Nothing should be suggestive of discrimination. Nothing should be done by them which gives an impression of bias, favoritism or nepotism. Ordinarily, these factors would be absent if the matter is brought to public auction or sale by tenders. That is why the Court repeatedly stated and reiterated that the State owned properties are required to be disposed of publicly. But that is not the only rule. As O.Chinnappa Reddy, J. observed, "that though that is the ordinary rule, it is not an invariable rule." There may be situations necessitating departure from the rule, but then such instances must be justified by compulsions and not by compromise. It must be justified by compelling reasons and not by just convenience."

52. In "Fertilizer Corporation case" (AIR 1981 SC 344) at p.350 the Court speaking through Chandrachud, C.J., observed: "We want to make it clear that we do not doubt the bona fides of the authorities, but as far as possible, sales of public property, when the intention is to get the best price, ought to take place publicly. The vendors are not necessarily bound to accept the highest or any other offer, but the public at least gets the satisfaction that the Government has put all its cards on the table.

53. In "Ram and Shyam Company v. State of Haryana" (1985 (3) SCC 267), it has been laid down: (vide p.277, para 12) "....On the other hand, disposal of public property partakes the character of a trust in that in its disposal there should be nothing hanky panky and that it must be done at the best price so that larger revenue coming into the coffers of the State administration would serve public purpose viz. the welfare State may be able to expand its beneficent activities by the availability of larger funds. ....But where disposal is for augmentation of revenue and nothing else, the State is under an obligation to secure the best market price available in a market economy. An owner of private property need not auction it nor is he bound to dispose it of at a current market price. Factors such as personal attachment, or affinity, kinship, empathy, religious sentiment or limiting the choice to whom he may be willing to sell, may permit him to sell the property at a song and without demur. A welfare State as the owner of the public property has no such freedom while disposing of the public property."

55. Disposal of Public Property without reaching out to the public is a breach of public trust and is therefore facially and ex-facie discriminatory. By giving preference to a select few amounts to treating equals unequally. This offends fundamental right of equality under Article 25 of the Constitution." (emphasis supplied) This question has been answered by learned Division Bench of this Court in a case titled as Atta Ullah Khan Malik v. Federation of Government of Pakistan through President of Pakistan and 3 others (PLD 2010 Lahore 605) wherein it was held as under:- "

15. It is settled on good authority that in matters pertaining to public interest litigation (also known as "PIL") the rule of "standing" or "locus standi" or "aggrieved person" has received a liberal interpretation over the years and any person/citizen having "sufficient interest" (in the context of larger public interest) can maintain a petition and pass as an "aggrieved person" under Article, 199 of the Constitution, subject to satisfying other requirements of the said Article. Reliance is placed on "Muhammad Tariq and Abbasi and others v. Defence Housing Authority and others" (2007 CLC 1358), "Muhammad Yar v. Muhammad Tariq" (2007 YLR 2430), "Moulvi Iqbal Haider v. Capital Development Authority" (PLD 2006 SC 394), "Javed Ibrhaim Paracha v. Federation of Pakistan and others" (PLD 2004 SC 482), "Khurram Khan, Advocate v. Government of Punjab through Chief Secretary and 6 others" (PLD 2009 Lah. 22). "Ardeshir Cowasjee and 11 others v. Sindh Province and others" (2004 CLC 1353), "Ardeshire Cowasjee and 10 others v. Karachi Building Control Authority (KBCA), Karachi and 4 others" (1999 SCMR 2883), "Mushtaq Ali v. Government of Sindh through Chief Secretary, Sindh, New Sindh Secretariat Karachi and 11 others" (PLD 1998 Kar. 416), "Democratic Workers" Union C.B.A. v. State Bank...Pakistan and others" (2002 PLC (CS) 614), "State v. M.D. WASA and others" (2000 CLC 471), "Province of Punjab through Collector Faisalabad and 8 others v. Muhammad Yaqoob" (1992 CLC 2065) "Ardeshir Cowasjee and others v. K.B.C.A. and others" (2001 YLR 2403) "Maulana Abdul Haq Baloch and 2 others v. Government of Balochistan through Secretary Industries and Mineral Development, Quetta and 6 others" (PLD 2007 Quetta 118).

16. Any citizen or person (part of the public) has "sufficient Interest" and is, therefore, an aggrieved person under Article 199 of the Constitution, if public property is being acquired, held, used, or disposed of by public functionaries in violation of the law. Public functionaries as trustees of the people, cannot have any personal interest in any public property, therefore if there is any abuse of trust or violation of law, it qualifies any member of the general public as an "aggrieved person" with the right to invoke the constitutional jurisdiction of this Court, subject to fulfilling other requirements of Article 199.

17. The significance of public interest litigation has special importance in our country. Even after 63 years of Independence, we still have fledgling public institutions because unfortunately they could not be nurtured under the shade of democracy due to repeated usurpation of our political space by unelected forces. Lack of democracy over years has taken a toll on our institutions. Absence of basic democratic values and democratic culture within public institutions threatens rule of law and due process breeding unchecked corruption. Disappointed with the undemocratic mindset of public functionaries, people have time and again resorted to courts for judicial review through public interest litigation.

18. It is essential for the public functionaries to understand the importance and meanings of a democratic welfare state. "What is democracy? ...It rests on two bases. The first is the sovereignty of the people. This sovereignty is exercised in free elections, held on regular basis, in which the people choose their representatives, which in turn represent their views. This aspect of democracy is manifested in majority rule and in the centrality of the legislative body through which the people's representatives act. This is the formal aspect of democracy. It is of central Importance, since without it the regime is not democratic...The second aspect of the democracy is reflected in the rule of values (other than the value of majority rule) that characterize democracy. The most important of these values are separation of powers, the rule of law, judicial independence, human rights, and basic principles that reflect yet other values (such as morality and justice), social objectives (such as the public peace and security), and appropriate ways of behavior (reasonableness good faith). This aspect of democracy is the rule of democratic values. This is a substantive aspect of democracy. It too is of central important. Without it the regime is not democratic." (emphasis supplied) The Hon'ble Supreme Court of Pakistan in a case titled as Dr. Akhtar Hassan Khan and others v. Federation of Pakistan and others (2012 SCMR 455) has observed as under:- "

50. While holding that these petitions are maintainable, we would like to strike a note of caution. The Court has to guard against frivolous petitions as it is a matter of common observation that in the garb of public interest litigation, matters are brought before the Court which are neither of public importance nor relatable to enforcement of a fundamental right or public duty. In Ashok Kumar Pandey v. State of West Bengal (AIR 2004 SC 280) the Court was seized of such a petition when it observed as follows:-- "Public interest litigation is a weapon which has to be used with great care and circumspection and the judiciary has to be extremely careful to see that behind the beautiful veil of public interest an ugly private malice, vested interest and/or publicity seeking is not lurking. It is to be used as an effective weapon in the armory of law for delivering social justice to the citizens. The attractive brand name of public interest litigation should not be used for suspicious products of mischief. It should be aimed at redressal of genuine public wrong or public injury and not publicity oriented or founded on personal vendetta. As indicated above, Court must be careful to see that a body of persons or member of public, who approaches the court is acting bona fide and not for personal gain or private motive or political motivation or other oblique consideration. The Court must not allow its process to be abused for oblique considerations. Some persons with vested interest indulge in the pastime of meddling with judicial process either by force of habit or from improper motives. Often they are actuated by a desire to win notoriety or cheap popularity. The petitions of such busy bodies deserve to be thrown out by rejection at the threshold, and in appropriate cases with exemplary costs." The similar view has been reiterated by the Hon'ble Supreme Court of Pakistan in a case titled as Moulvi Iqbal Haider v. Capital Development Authority and others (2012 SCMR 455) wherein the Hon'ble Apex Court has observed as under:- "In addition to above principle, this Court in the case of Javed Ibrahim Paracha v. Federation of Pakistan and others (PLD 2004 SC 482) has held that "a person can invoked the constitutional jurisdiction of the superior Courts as pro bono publico' but while exercising this jurisdiction, he has to show that he is litigating, firstly, in the public interest and, secondly, for the public good or for the welfare of the general public. The word 'pro bono publico' as defined in Blacks Law Dictionary, Chambers Dictionary and Oxford Dictionary generally means 'for the public good' or 'for welfare of the whole' being or involving uncompensated legal services performed especially for the public good. 'Public interest' in the Black Law Dictionary, has been defined as the general welfare of the public that, warrants recognition and protection. Something in which the public as a whole has a stake; esp., an interest that justifies governmental regulation. It thus signifies that in case of public interest litigation, one can agitate the relief on his own behalf and also on behalf of the general public against various public functionaries, where they have failed to perform their duties relating to the welfare of public at large, which they are bound to provide under the relevant laws. Viewing the bona fide of petitioner in the above contest, we are of the opinion that the petitioner has not been able to show that he was aggrieved person within the meaning of Article 199 of the Constitution and can agitate this grievance as pro bono publico". As such, the arguments of the learned counsel of the respondents that the petitioner is not an aggrieved person and has no locus standi to question the orders of allotments, is misconceived, as such, the objection of the respondents is hereby repelled.

7. Now coming to the merits of the case that the Government of Punjab, Colonies Department, under the Colonization of Govt. Land (Punjab) Act, 1912, issued statements of condition/policy vide Notification No.7490/61 C. O II dated The 13th February, 1962 to grant lands in the districts Multan, Montgomery, Lyallpur etc. Districts, under Gallantry Awards and Army Welfare Schemes, to the all ranks of Soldiers, Sailors and Airmen who are recipients of award for an act of gallantry or have rendered other distinguished services to the state of Pakistan. For ready reference, Notification whereof is reproduced as under:- "No.7490/61 C. O II

In pursuance of the provisions of subsection (2) of section 10 of the Colonization of Government Lands (Punjab) Act, 1912, the Governor of West Pakistan is pleased to issue the following statement of conditions on which the West Pakistan Government (hereinafter referred to as the Government) is willing to grant in the districts of Multan, Montgomery, Lyallpur, Jhang, Sargodha, Muzaffargarh and Bahawalpur (hereinafter referred to as the said lands) to the Soldiers, Sailors and Airmen of all ranks who are recipients of award for acts of gallantry and other distinguished services to the State, or in the case of posthumous awards, to their heirs (hereinafter referred to as the grantee) on the recommendations made in this behalf by the Services Headquarters of the Army, Navy and Air Forces. Provided the no land which lies within three miles of the outer Municipal limits of a Mandi Town, or Municipality or within one mile of a Railway Station shall be allotted under this scheme."

8. The Secretary (Colony), Board of Revenue, Punjab required District Officer Revenue Muzaffargarh to submit information of the state land measuring 30,000-acres for the above said purpose. The District Officer Revenue Muzaffargarh vide letter dated 29.11.2006 sought the details from lower field staff. For ready reference, letter dated 29.11.2006 is reproduced as under:- After receipt of the details of land from the Revenue officers of the District concerned, the Secretary (Colonies-I), Secretary to Govt. of the Punjab, Colonies Department issued memorandum on 28th November, 2006, whereby earmarked available State land measuring 1,00,000/- acres was placed at the disposal of GHQ for its onward allotment to Military Personnel under Army Welfare Scheme. For ready reference, gist of letter dated 28.11.2006 is as under:- Subject:- PLACING OF 100000 ACRES OF AVAILABLE STATE LAND AT THE DISPOSAL OF GHQ FOR ALLOTMENT TO MILITARY PERSONNEL UNDER ARMY WELFARE SCHEME. Memorandum: Reference this office Memo. No.1618-2006/1776-CIV, dated 31.08.2006 on the subject noted above.

2. Government of the Punjab in the Colonies Department is pleased to place the following state land at the disposal of General Headquarters, Rawalpindi for allotment to the Defence Personnel under Army Welfare Scheme. Sr.No. Name of District Area Acres Kanals Marlas 1 Khanewal 2234 00 00 2 Kasur 310 00 00 3 Bahawalnagar 351 00 00 4 Rajanpur 10397 00 00 5 Muzaffargarh 30598 00 00 6 Layyah 1229 00 00 Total 45119 00 00

3. You are requested to depute a representative to collect your copy of schedule of land bearing the signature of Deputy Secretary (Colonies-I), Board of Revenue, Punjab." The aforementioned lands of District Muzaffargarh, Khanewal, Kasur, Bahawalnagar, Rajanpur and Layyah were reserved for allotment to the Armed Forces Personnel under Army Welfare Scheme. Whereafter the Colony Department became functus officio/devoid of any authority to farcically assume the jurisdiction and make allotment of the said land to any civil person.

9. But in the blatant contravention of the above policy notification, some civil officers of Revenue and Colony as well as that of the Irrigation Departments got allotted different chunk of land under section 10(3) of the Colony Act, 1912, details whereof is as under:-- Name Detail of property Amjad Babar, Superintendent Colony Branch, Board of Revenue, Punjab land measuring 100-Kanals comprising Square No.13, Killa No.13/1 (04-Kanals), Killa Nos.14 to 25 (96-Kanals) in Mouza Rakh Hamze Wali, Tehsil Jatoi District Muzaffargarh Rashid Habib Qureshi, Assistant Colony Branch, BOR, Punjab, Lahore son of Habib Ullah Qureshi Arms/Svc: Civ. Caste. Qureshi of Mouza Rakh: Hamze Wali Land measuring 100-Kanals comprising Square No.9, Killa No.23/1 (04-Kanals), Killa Nos.24 to 25 (16-Kanals), square No.14, Killa Nos.4 to 7 (32-Kanals), Killa Nos.14 to 17 (32-Kanals), 24, 25 (16-Kanals) Ata-ur-Rehman, Private Secretary to Member Colonies, Board of Revenue, Punjab land measuring 100-Kanals comprising Square No.13, Killa Nos.1 to 12 (96-Kanals), Killa No.13/1 (04-Kanals) in Mouza Rakh Hamze Wali, Tehsil Jatoi District Muzaffargarh The District Officer (Revenue) / Collector, Muzaffargarh Muhammad Ashraf Yousafi son of Muhammad Hussain land measuring 200-Kanals, through mutation Nos.796 dated 12.05.2008 and 270 dated 10.05.2008 Mr. Malik Muhammad Ramzan son of Malik Ghulam Muhammad (Late) Deputy District Officer (Revenue), Kot Addu land measuring 200-Kanals

10. Besides above allotments, learned counsel for the respondents boldly provided a detail list of other officers/officials who were also allottee of said state land reserved for Army Welfare Scheme. The said list is reproduced as under:- Sr.# Name of district Name of officer/official to whom land was allotted Area allotted 1 Pakpattan Mr. Khawar Javaid Anjum son of Ghulam Hussain, Patwari 65-Kanals 14 marla in Chak No.CIXB and 89/D, Tehsil and District Pakpattan 2 Sahiwal Mr. Khawar Javaid Anjum son of Ghulam Hussain, Patwari 34-Kanals 9-marla, Chak No.73/5L, Sahiwal 3 Khanewal

1. Rana Muhammad Hanif, Ex-Senior Clerk 100 Kanal, Chak No.65/10-R and Chak No.66/10-R

2. Mr. Mushtaq Anjum son of Abdul Aziz (Ex-PCS/BS-19) Ex-DLR, Board of Revenue, Punjab. 200 Kanal Zakheera

3. Mr. Muhammad Azam Khan, (Ex-PCS/BS-18), Ex-DOR, Lodhran 200 Kanal Zakheera

4. Mr. Qamar Abbas Sultan, son of Ghulam Hussain, Ex-Assistant Director (M&A), Board of Revenue, Punjab 200 kanal Zakheera

5. Mr. Ghulam Farid Langrial son of Atta Muhammad 200 kanal Zakheera

6. Malik Muhammad Qasim son of Malik Noor Muhammad, Ex-HVC to DOR, Khanewal 100 Kanal Zakheera

7. Syed Imtiaz Hussain Shah son of Syed Fida Hussain Shah (DMG), PD ABAD, Rawalpindi 100 Kanal Zakheera

8. Mr. Muhammad Zafar Ali son of Muhammad Ibrahim, Tehsildar 100 Kanal Zakheera

9. Mr. Liaqat Ali Javaid son of Kabir Ali, Senior Clerk. 100 Kanal Zakheera

10. Mr. Muhammad Zahid Ikram son of Muhammad Ikram, Ex-PCS, Ex-DDO General, Khanewal 200 Kanal Zakheera

11. Mr. Sikandar Ali Bukhari son of Abdul Raheem Bukhari, Ex-PCS, Ex-DDO General, Khanewal 200 Kanal Zakheera

12. Mr. Muhammad Waseem Akhtar son of Dilbar Hussain Bhatti, Ex-Patwari 100 Kanal Zakheera

13. Sardar Ahmad Nawaz Sukhaira, DMG, Principal Secretary to Governor, Punjab. 200 Kanal Zakheera

14. Mr. Muhammad Iqbal son of Muhammad Aslam, Kanungoo, K.wal 100 Kanal Zakheera 4 Rahim Yar Khan

1. Syed Najaf Abbas Bukhari son of Syed Ghulam Abbas Shah, Ex-EDOR, Lodhran 200-Kanal Chak No.98-P

2. Mr. Ashraf Ali Shah son of Syed Muhammad Iqbal Shah, Patwari 100 Kanal Mouza Daulatabad. 5 Muzaffargarh

1. Malik Muhammad Ramzan, Ex-DDOR, Kot Addu 200 Kanals Chak No.693/TDA

2. Mr. Riaz Ahmad, Ex-Head Clerk Colony 100 Kanal, Chak Rakh Hamzywali

3. Mr. Amjad Babar, Ex-Superintendent Colony, Board of Revenue, Punjab. 100 Kanal, Chak Rakh Hamzywali

4. Mr. Atta ur Rahman, Ex-P S to Member (Colonies) 100 Kanal, Chak Rakh Hamzywali

5. Mr. Rashad Habib, Ex-Assistant Colony Branch, Board of Revenue. 100 Kanal, Chak Rakh Hamzywali

6. Mr. Ghulam Sarwar, Ex-Patwari Halqa Aziz Abad 100 Kanal Chak No.137/ML

7. Mr. Muhammad Ashraf Yusafi, Ex-PCS, Ex-EDOCD, Muzaffargarh 200 Kanal (100 Kanal in Chak Rakh Hamzywali and 100 Kanal in Chak 140/ML)

8. Mr. Ameer Hussain, Ex-Colony Clerk 100 Kanal Mouza Sadiqabad, Tehsil Kot Addu.

9. Mr. Muhammad Shahid, Colony Clerk 100 Kanal Mouza Sadiqabad, Tehsil Kot Addu 6 Bahawalnagar

1. Ch. Abdul Ghafoor Virk, Ex-PCS, DOR, Bahawalnagar (Retd.) 200 Kanal Chak No.118/6-R, Tehsil Haroonabad.

2. Mr. Dur Muhammad, Ex-PCS, DDOR, Fortabbas (Retd.) 200 Kanal Chak No.173-7-R, Tehsil Fortabbas.

3. Mr. Irshad Mohy ud Din, Ex-PCS, Ex-DOR, Bahawalnagar 200 Kanal, Chak No.118/6-R, Tehsil Haroonabad.

4. Mian Muhammad Akram, Ex-Tehsildar, Fortabbas. 100 Kanal, Chak No.295-A-HR, Tehsil Fortabbas.

5. Syed Munawar Hussain Shah, Ex-Patwari 100 Kanal, Chak No.295-A-HR, Tehsil Fortabbas.

6. Syed Aqib Hussain Shah, Head Draftsman, Irrigation Department. 100 Kanal, Chak No.432/5-R, Tehsil Haroonabad.

7. Mr. Noor Muhammad, Ex-Qasid Awan-e-Sadar, Army House 100 Kanal, Chak No.200/8-R, Tehsil Haroonabad

8. Mr. Mahmood Hussain, Ex-Naib Qasid Awan-e-Sadar, Army House 100 Kanal, Chak No.200/8-R, Tehsil Haroonabad

9. Mr. Ghulam Rasool, Mali Awan-e-Sadar, Army House 100 Kanal, Chak No.224/8-R, Tehsil Haroonabad

10. Mr. Muhammad Sikandar, Civil Cook, Awan-e-Sadar, Army House 100 Kanal, Chak No.295/A/HR, Tehsil Haroonabad

11. Mr. Muhammad Irshad, Sub Inspector Rangers 100 Kanal, Chak No.295/A/HR, Tehsil Haroonabad

12. Mr. Abdul Ahsan, Qasid Awan-e-Sadar, Army House 100 Kanal, Chak No.295/A/HR, Tehsil Haroonabad 7 Bahawalpur

1. Syed Zahid Hussain Jillani, Ex-PCS, Ex-DDOR 200 Kanal, Nawazabad, Bahawalpur.

2. Dr. Faisal Zahoor, DMG, Ex-DOR, Bahawalpur 200 Kanal, Chak No.64/DB, Yazman, Bahawalpur

3. Mr. Muhammad Ashfaq, Ex-PCS, Ex-DDOR, Yazman 200 Kanal, Chak No.2/DNB, Yazman, Bahawalpur.

4. Mr. Muhammad Akram Bhatti, Ex-PCS, Ex-DDOR, Yazman 200 Kanal, Chak No.64/DB, Yazman, Bahawalpur

5. Mian Amir Kareem Khan, Ex-PCS, Ex-DDOR, Hasilpur 200 Kanal, Chak No.831 and 84 F, Hasilpur, Bahawalpur.

6. Mr. Mushtaq Ahmad Gill, Ex-PDOFWAM, Bahawalpur 200 Kanal, Chak Nawazabad, Bahawalpur

7. Mr. Muhammad Amjad, Ex-Colony Clerk, Bahawalpur 100 Kanal, Chak No.102/1A, Hasilpur, Bahawalpur

8. Mr. Muhammad Muzaffar Alam, Ex-Patwari 100 Kanal, Chak No.64/DB, Yazman, Bahawalpur.

9. Mr. Mansoor Ahmad Khan son of Abdul Shakoor Khan

8. Kasur Mr. Tariq Yousaf, Ex-Member (Colonies), Board of Revenue, Punjab.

9. Bhakkar

1. Mr. Khan Muhammad Kundi, EDO Colony, Bhakkar.

2. Mr. Mehtab Ahmad Khan, Ex-Tehsildar Mankera.

11. Against the above allotments, the Deputy Commissioner, Bahawalpur transmitted a complaint/reference to the Board of Revenue, Punjab who (MBR) vide letter No.620-2010/357-C-IV dated 22.03.2010 cancelled the above said allotments of state land allotted to the Civil Officers/Officials and the said order of cancellation had never been reversed by any competent forum. For ready reference, above mentioned letter dated 22.03.2010 is reproduced as under:- "Subject:-ALLOTMENT OF STATE LAND TO THE CIVIL OFFICERS/OFFICIALS OUT OF ARMY WELFARE SCHEDULE LANDS. Memorandum: Please refer to the subject cited above.

2. On a summary submitted to Chief Minister, Punjab regarding allotment of land to civil officers out of the land allocated for welfare of Army Personnel, following orders have been passed by Competent Authority. a. Subsequent allotment of Punjab Government land to the civil officers be got cancelled and as it was actually allotted to the military for a specific purpose. b. Its further alienation by the beneficiaries be banned. c. In case anyone has alienated it, sale proceedings be recovered and deposited in Treasury within a period of one month.

3. Above orders must be complied with in letter and spirit and a compliance report be submitted within one week. A complete list of beneficiaries may also be submitted on enclosed proforma."

12. The Colonization of Govt. Lands (Punjab) Act, 1912 an Act to make better administration of Government lands in the Punjab. Under section 10 of the Act, ibid, the Board of Revenue with the approval of the Government may grant land in a colony areas to the eligible persons on such described written statement of conditions of lease. Under the law ibid, the Provincial Government is competent to formulate or amend the policies and issue statements of the conditions for the grant state land to tenants. After issuance of statements of conditions, the Collector, subject to the supervision of Board of Revenue, may allot state land to eligible person through a written order. Under the above scheme of law, no person shall be deemed to be a tenant or to have any right or title in the land allotted until a written order has been passed in his favor and possession of the said land has been delivered to tenant. Even after having obtained the possession, the grant shall always be remained subservient to the settled statement of conditions applicable thereto. For ready reference, section 10 of Act ibid is reproduced as under:- "

10. Issue of statements of conditions of tenancies.

(1) The Board of Revenue subject to the general approval of the Government may grant land in a colony to any person on such conditions as it thinks fit. (2) The Provincial Government may issue a statement or statements of the conditions on which it is willing to grant land in a colony to tenants. (3) Where such statements of conditions have been issued, the Collector may, subject to the control of Board of Revenue, allot land to any person, to be held subject to such statement of conditions issued under subsection (2) of this section, as the Collector may by written order declare to be applicable to the case. (4) No person shall be deemed to be a tenant or to have any right or title in the land allotted to him until such a written order has been passed and he has taken possession of the land with the permission of the Collector. After possession has been so taken, the grant shall be held subject to the conditions declared applicable thereto." (emphasis supplied)

13. From perusal of the record of the allotment it transpires that none of the allottees is shown to be an ex or present Armed Forces personnel or the legal heirs of a martyr. It can conveniently be observed that allotments of state land was obtained by the private respondents through collusivity, misrepresentation of true facts as well as by practice brazen fraud with the state property. Admittedly the land was reserved for Army Personnel under Army Welfare Scheme and it could not be allotted to any civil officer/official. Unfortunately some of the Revenue Officers (DDOR and DOR) also got allotments of the land in their own name in violation of the said Scheme as well as in contravention of letter dated 22.03.2010 of the Member Board of Revenue which constitutes a is brazen fraud with settled objectives of the scheme. It is painful but appropriate to comment on these farcical transactions as "to make hay while sun shines". It is well settled law that fraud vitiates the most solemn proceedings and any structure raised on the basis of fraudulent transaction shall automatically stand dismantled and any benefit, right or title derived by committing fraud have no value in the eyes of law. Reliance is placed on the cases titled as Nawab Syed Raunaq Ali etc. v. Chief Settlement Commissioner and others (PLD 1973 SC 236) and The Chief Settlement Commissioner, Lahore v. Raja Muhammad Fazil Khan and others (PLD 1975 SC 331) wherein the Hon'ble Supreme Court of Pakistan has observed that the ill-gotten gains cannot be perpetuated in any norm of constituality, legality, fairness and transparency. For ready reference, relevant portion is reproduced as under:- ".....it has been observed that the discretionary relief ought not to be granted by the High Court to help retention of ill-gotten gains by a party even if because of any technical reason an order made by a tribunal is not found justifiable, as the writ jurisdiction is not to be invoked in aid of injustice."

14. Moreover according to section 23 of the Contract Act, 1872, if any order is passed by any authority beyond its jurisdiction and against the public policy, such order in the very inception is nullity in the eye of law and never conveys any title in favour of the beneficiary. For ready reference, section 23 of the Act ibid is reproduced as under: "

23. What considerations and objects are lawful and what not. The consideration or object of an agreement is lawful, unless:--it is forbidden by law; or is of such a nature that, if permitted, it would defeat the provisions of any law; or is fraudulent; or involves or implies injury to the person or property of another; or the Court regards it as immoral, or opposed to public policy. In each of these cases, the consideration or object of an agreement is said to be unlawful. Every agreement of which the object or consideration is unlawful is void." (emphasis supplied) With regard to contract against law and public policy, the Hon'ble Supreme Court of Pakistan in a case titled as Hameedullah and 9 others v. Headmistress, Government Girls School Chokara, District Karak and 5 others (1997 SCMR 855) held that:-- "From the aforestated observations it is clear that the agreement between the Government and the appellant was in the nature of sale of a public office, consideration being the transfer of land. Sale of public office cannot be a legal transaction. It is completely illegal and against public policy. Therefore, such an agreement is hit by section 23 of the Contract Act, which makes it void." (emphasis supplied) The august Court in a case titled as Maulana Abdul Haque Baloch and others v. Government of Balochistan through Secretary Industries and Mineral Development and others (PLD 2013 SC 641) has held as under:- "The competent authority also failed to determine the terms and conditions to be fixed in granting the relaxations sought for. In this view of the matter, in absence of the requirements of rule 98 being fulfilled in the instant case, all relaxations were granted in excess of authority and were entirely beyond the scope of the provisions of law, and therefore, ultra vires the powers granted under rule 98 of BMCR 1970 read with section 5 of the Act of 1948, and thus void. Shorn of relaxations so grant, CHEJVA has no legal sanctity and consequently remains an agreement entered into against the provisions of law, hence not enforceable. All the key provisions of CHEJVA were made subject to a reliance on relaxations that were illegal and void ab initio, the illegality of the agreement seeps to its root. As such, no operative part of the agreement survives to be independently enforceable and the principle of severability cannot be applied to save any part thereof. The agreement is, therefore, void and unenforceable in its entirety under the law." In another judgment titled as Muhammad Arshad Khakwani v. I.U.B. and another (2011 MLD 322) this Court has held that:-- "No doubt the Statutory bodies are governed under the Act, rules, regulations and statutes which are meant for the said purpose and no one is allowed to supersede the same. The University functionaries are presumed to act under the law and no one can exceed from its domain neither supersede nor deviate. If the provisions of the Act are not complied with then the Institutions cannot run smoothly as is required by the law and the guarantees provided by the Constitution of Islamic Republic of Pakistan, 1973."

15. Extraordinary reiteration is placed on this plea that a High rank committee of army officers as well that of the Board of Revenue has settled that the allotment already made in favour of civil official/officers may be considered as past and closed transaction. The alleged recommendations/proposal of the said committee (summary) was virtually approved by the Chief Minister, suffice it to say in this regard that the Chief Minister is shown nowhere competent under any provision of Colonization of Government Lands (Punjab) Act, 1912 to pass any order for the allotment of the valuable state land to any private uneligible individual or to validate a patent void order of his subordinate authority. Reliance in this regard is placed on Province of Punjab through Secretary Revenue and others v. District Bar Association, Khanewal and others (2014 SCMR 1611), wherein the Hon'ble Apex Court held as under:-- "

13. Looking at the powers of the Chief Minister for allotment of public, here a reference to the case of Iqbal Hussain v. Province of Sindh through Secretary, Housing and Town Planning, Karachi and others (2008 SCMR 105) will be useful wherein this Court has observed as under:- "

3. We are in complete agreement with the view taken by the Division Bench of the High Court when it says that public functionaries including the Chief Minister can deal with the public property only under a prescribed procedure within the parameters of law under a duly sanctioned scheme and not at their whims. Even if such order was passed by the Chief Minister in favour of the petitioner, authorities concerned would not be bound to follow such illegal and void order of a superior authority. It would rather be in the exigencies of good order of administration and their duty to point out to the high-ups that they were acting in excess of their lawful authority and in violation of law and the constitutional mandate. They may be apprised of the legal consequences flowing from such acts. The compliance of any illegal and arbitrary order in neither binding on the subordinate forums nor valid in the eye of law. Reference in this behalf may be made to decision of this Court in (i) Abdul Haq Indhar v. Province of Sindh (2000 SCMR 907) and (ii) Taj Muhammad v. Town Committee (1994 CLC 2214)." In the case titled as American International School System v. Mian Muhammad Ramzan and others (2015 SCMR 1449), the Hon'ble Supreme Court of Pakistan held as under:- "

21. As discussed above, the petitioner-School was not eligible to be allotted evacuee land under the Scheme, 1977. There is nothing on record to substantiate the claim of the petitioner-School that it was allotted subject land in the public interest. The Chief Minister does not possess any plenary authority and or jurisdiction to allot any land as a matter of grace or favour at his whims and fancy, but in accordance with law. The public functionaries are the custodians of the public/State land, which could only be disposed of in accordance with law." In similar nature of the matter the Hon'ble Supreme Court of Pakistan have conclusively settled in Haji Saeed case bearing (H.R.C. Nos.7581-P and 9059-P of 2009) that Chief Minister has no authority to allot state land to any person held as under:- "The learned Advocate-General Punjab informed that draft policies in respect of allotments/leases of State lands have been approved by the Cabinet in its meeting held on 11-3-2013. He has referred page 2 of the C.M.A. 1878 of 2013 which contains the draft notifications and stated that subject to its approval, the same shall be implemented. It has been pointed out to him that in respect of formulating the policies, the Court has noting to do with it as it is the job of the Government. However, as explained that the policy is in the public interest, the same may be notified accordingly." (2) The learned Advocate General, Punjab further stated that as far as the issue regarding unfettered powers of the Chief Minister to allot State lands is concerned, no such powers are conferred upon him under the law, therefore, no such issue exists".

16. So far as the arguments of the learned counsel for the respondents that the matter in respect of the suit property is still pending before the Hon'ble Supreme Court of Pakistan this Court should avoid to decide the instant lis, suffice it to say in this regard that some of the illegal occupants over the said state land initiated the legal proceedings for getting allotment of the land in their possession through various writ petitions which were dismissed by this Court but in the said proceedings, the validity of the alleged allotment in favour the present respondents were not determined as such the pendency of above matters in the Hon'ble Apex Court have no direct bearing on the decision of this case. Reliance is placed on the case titled as Province of the Punjab through Collector, Sheikhupura and others v. Syed Ghazanfar Ali Shah and others (2017 SCMR 172).

17. In view of above, this writ petition is allowed. Impugned order of the allotment in favour of the respondents/civil officials/ officers are hereby declared as null and void, obtained in violation of the Army Welfare Scheme, as such, same are accordingly set aside. The Senior Member Board of Revenue is directed to resume the said land within a period of two months and restore it to concerned authority of GHQ under intimation of this Court through its Deputy Registrar (Judicial). The Senior Member, Board of Revenue shall also look into the allotments of state land obtained by different persons, mentioned in paragraph No.10 of this judgment, and proceed with the matter in accordance with law. Office is also directed to transmit a copy of this order to the Senior Member Board of Revenue through fax as well as by ordinary mode. MH/M-149/L Petition allowe