1975 PLP 359 (SCMR)

During the pendency of the above appeal in this Court, however, a new scheme, it is said, had been framed under section 16-A of the Act of 1958 and under this scheme, which came into force on the 26th June, 1971, an express power to lease out trust properties has been given to the Evacuee Trust Board. It also appears that the Evacuee Trust Committee is still interested in the ac4uisition of the said Plot No.

1. Be that as it may, the question now before us is as to whether the High Court was right in holding that the impugned order of the Commissioner, Karachi Division, as the Controlling Authority of the Karachi Municipal Corporation, under section 111 of the Municipal Administration Ordinance, 1960, was not without lawful authority. The order was assailed in the High Court upon three grounds, namely : - (1) That the Controlling Authority had not complied with the directions given by the High Court in its previous judgment reported in P L D 1971 Kar. 514 ; (2) That the Controlling Authority had wrongly held that the resolution was against public interest; and (3) That the intention behind revoking the resolution was really to transfer the plot to the Evacuee Trust Committee. The High Court took the view that there was no substance in any one of these contentious, as, the Controlling Authority had "fully applied its mind to the provisions of section 111 of the Municipal Administration Ordi nance, 1960, and had complied with the conditions therein laid down as also the directions given on the previous occasion. The High Court also agreed that there was material on the record on which the Controlling Authority could lawfully hold that the resolution was against public interest. In any event, if the Authority had coma to an erroneous conclusion on this question that could not be assailed in writ proceeding. The third ground, according to the High Court, did not arise, as, no such intention was either indicated in the impugned order or was reasonably inferable there from. 'There was also no evidence to show that the Trust Committee was still interested in obtain ing the transfer of the plot in dispute. Learned counsel appearing in support of this appeal has, however, contended that the operative portion of the order of the Commissioner is wholly without lawful authority as it disclosed no valid or cogent ground for the quashing of the order. The impugned order of the Commissioner dis,10303 that he first set out section 111 of the Municipal Administration Ordinance, 1950, then set out the points which he had to decide, namely as to whether the impugned resolu tion was in conformity with law and as to whether it was not against public interest. It was conceded before him that the resolution was in conformity with law. Hence he took the view that the only question before him was as to whether or not the resolution was against public interest. In this connec tion, it was urged before him on the basis of a decision of the Dacca High Court that requisitioning of property for refugees was in the public interest. He repelled this contention on the ground that it was not relevant, because, no requisitioning was involved in the present case. He then enquired from the Trust Committee as to how the income of the Trust Property was propos ed to be utilised and was told that it would be utilized on charitable, religious and educational purposes as specified in the scheme under section 16-A of the Act of 1958. He refrained, nevertheless, from expressing any opinion on the question as to whether the utilization of the land by them would be in the public interest presumably because he was also the Chairman of the Evacuee Trust Board. He left this question to the K. M. C. to consider on merits. He then took up for consideration the case of the appellants and, on being informed that they proposed to construct shops on the plots for their own use, he concluded as follows :- "There cannot be two opinions that personal interest is diameterically opposed to public interest. Moreover, the petitioners are in occupa tion of 241 sq. yards of the plot only for which they held tenancy rights, as mentioned by Legal Adviser, K. M. C. in his report. Theta is no justification for them to have the entire plot which is 1121 sq. yards. There is a mosque and a clinic on the plot, which relate to public interest. It is not advisable to deny this benefit to the public. I, therefore, do not accept the recommendation which, hold, is against public interest." Learned counsel for the appellants has contended that none of the grounds is relevant to the question which fell to be decided. If sale of the plot to the Divisional Evacuee Trust Committee for the purpose of construct ing a multi-storied building was in the public interest then why was not the sale to the appellants, who were displaced persons, in the public interest also? To up-root them after 24 years would, it is contended, be more against public interest than the sale of the plot to them. Section 111 of the Ordinance reads as follows- "Control over the activities of the Municipal Committees.-(1) If, in the opinion of the Controlling Authority, anything done or intended to be done by or on behalf of a Municipal Committee is not in conformity with law, or is in any way against public interest, the Controlling Authority may, by order - (a) quash the proceedings ; (b) suspend the execution of any resolution passed or order made by the Municipal Committee ; (c) prohibit the doing of anything proposed to be done ; (d) require the Municipal Committee to take such action as may be specified. (2) Where an order under subsection (1) is made by a Controlling Authority other than the Government, the Municipal committee concerned may, within thirty days of the receipt of the order, represent against it to the Government and the Government may either confirm or modify or set aside the order." Rule 8 of the West Pakistan Municipal Committee (Property) Rules, 1962, framed under the said Ordinance, on which reliance has also been placed by the learned counsel, reads as follows "Alienation of property.-Any movable property of a Municipal Committee may be disposed of by sale or otherwise in accordance with the provisions of tie West Pakistan Municipal Committee (Contracts) Rules, 1960. (2) Notwithstanding anything to the contrary contained in the West Pakistan Municipal Committees (Contracts) Rules, 1960, any immov able property of a Municipal Committee may be leased, disposed of by sale or otherwise alienated by the Chairman- (a) on his own authority, it the period of the lease does not exceed one year ; (b) with the previous sanction of the Municipal Committee, if the period of the lease is more than one year, but not more than three years ; (c) with the previous sanction of the Controlling Authority in any other case." It will be observed from the above that the rules merely say that the Chairman of a Municipal Committee has the power on his own authority to grant a lease if the period of the lease does not exceed one year. If the period exceeds one year but does not exceed 3 years then he can do so with the previous sanction of the Municipal Committee and in all other cases, the sanction of the Controlling Authority is necessary and the Controlling Authority under section 111 has the power, inter alia, to quash any proceed ing of a Municipal Committee which is not to conformity with law or is, to any way, against public interest. What is against public interest has not been defined in the Ordinance and has, therefore, to be decided on general principles. This does not mean, that the object must be one which would advance a public purpose but all that is required is that it should not be prejudicial to or harmful to the public interest. The question has to considered in this light. It is quite possible to agree with the Commissioner that the sale to a Committee entrusted with the management of Trust pro perties under a scheme which contemplates the expenditure of its income for purposes of a charitable, religious or educational nature would be more bene ficial and more in the public interest than the sale to private parties who would be interested, merely in making personal profit or gain out of the transaction. There is of course, nothing on the record to show that the appellants war going to spend the income derived from the shops or structures to be con structed by them for the purposes of the mosque or the clinic therein already sex up or for any other religious or charitable purpose. The contention that the rehabilitation of displaced persons would not necessarily be against public interest is, no doubt, correct but if the Municipal Corporation was to derive greater profit by selling the plot to some other party on better terms, it could equally well be said that the sale to the appellants would be against public interest from the point of view of the Municipal Committee. The loss to the revenues of the Committee would be against public interest. In any event the view of the High Court that even if the Commissioner was wrong in his interpretation of the term "against public interest", his order was not open to challenge in the writ jurisdiction-because, the order was still made with jurisdiction and was not patently erroneous, cannot be said to be untenable. The High Court was not sitting in appeal over the Commissioner in the writ jurisdiction. It could not therefore, substitute its own opinion about what was or was not against public interest. All that it was concerned with was to see as to whether they decision of the Commissioner could have been arrived at, on the material before him, by any reasonable person. If so, then the order was not assail able in the High Court in the writ jurisdiction unless, of course, it was made male fide or in the colourable exercise of powers. Learned counsel, therefore, next contended that the order was made male fide and in the colourable exercise of powers, because, by leaving the decision about granting of the lease to the Divisional Evacuee Trust Com mittee to the K. M. C., the Commissioner had really exposed his mind and indicated what the Karachi Municipal Corporation should do. In fact, the Karachi Municipal Corporation had treated this observation of the Commissioner as a direction and again passed a resolution on the 3rd September, 1971, for transferring the lands in dispute to the Divisional Evacuee 'trust Committee. This resolution had also been forwarded to the Commissioner but the latter had stayed his hands as the matter was pending decision in this Court. The Commissioner has, in his order, clearly stated as follows :- "I think the consideration of the petition of DETC; and Trust Board is beyond the scope of this enquiry. I, therefore, refrain from giving my opinion whether prospective utilization of the land by them would be in public interest. It would be in excess of my powers and would also prejudice the K. M. C.; in any eventual proceedings in this matter, if 1 offer my opinion on the position of the DETC & the Trust Board." This clearly does not support the contention of the learned counsel. The Commissioner, it seems to us, has been careful to indicate that he does not wish to influence the decision of the Karachi Municipal Corporation on way or the other, far less, to presume to direct it to take a particular course of action. Learned counsel for the appellants has also contended that the Division al Evacuee Trust Committee could not purchase any property and, for this purpose has relied on the decision of this Court in the case of Tikamdas. But the scheme has since boon changed and under rule 19 of the Rules, it is said, it has now power to acquire property. However, this is not a question which concerns us here. It will be a matter for the Courts to consider if and when the same is challenged. We express no opinion on this question. The decisions cited in the cases of All Muhammad v. Muhammad Ramzan (1969SCMR46) and M/s. Oxford Knitting mills v. Sukkur Municipality (1970SCMR537) do no support the appellant. In fact, in the last mentioned case, there are observations to the effect that until tile lease is confirmed by the Commissioner the proposed lessee has no vested right in the property in dispute at all which would entitle him to maintain a writ petition. The same principle has been followed by this Court in the case of Meraj Din v. Noor Muhammad and 3 others (1970 S C M R 542) which lays down that " a person giving the highest bid in, an auction of evacuee property acquires no vested right in the property until the auction is confirmed by the relevant authority." Learned counsel has also referred to the decision of this Court in the case of the Province of East Pakistan v. Dr. Azizul Islam (P L D 1963 S C 296) to show that the requisition of property for the rehabilitation of persons displaced as a result of a diversion of a railway line is a public purpose but the question here is entirely different. It is not a question of rehabilitation at all but a question of selling a valuable plot of land to some displaced persons who propose to acquire it on payment of Rs. 5,25,000 for purposes of their individual gain n or profit. This goes far beyond rehabilitation and, therefore, is not within any public purpose. The acquisition of property to enrich any class or section of the public cannot be a public purpose. It is unnecessary in this, view of the matter, to refer to the other decisions of the Dacca High Court on the same point, which have been cited at the Bar. The question for consideration in all those cases was as to whether the action taken by Government was to advance a public purpose. Learned counsel appearing on behalf of the Commissioner has referred us to one of our recent decisions, in the case of Muhammad Hussain Munir and others v. Sikandar and others (P L D 1974 S C 139) in support of the decision of the High Court that the words "without lawful authority and of no legal effect" in Article 98 of the Constitution 1962 refer only to jurisdictional defects as distinguished from mere erroneous decisions whether on questions of fact or of law. The High Court, it is contended, could not in the exercise of the writ jurisdiction question the correctness of the decision of the Commissioner if "it was made with jurisidiction." The order of the Commissioner, it is said, does not even suffer from any error patent on the face of the record and, therefore, even if the principle laid down in the case of Karam Khan and S others v. Muhammad Issa and 12 others (1975SCMR36) is applied, the decision is not open to challenge in the writ jurisdiction. Learned counsel for the Commissioner has also relied on another decision of this Court in the case of Ekramul Haq and another v. The Province of East Pakistan and others (1964PSCR199) to support his contention that the requisition of a property at the instance of a private party for the expansion of an industry or even its establishment is not necessarily for a public purpose unless the establishment of the industry in question falls within the scheme of industrial development adopted in the interest of the country. A public purpose, as pointed out by the Privy Council, in the case of Hamabal Framjee Petit v. Secretary of State for India (42 1 A 44) means a purpose that is in some way or the other for the benefit of the public at large or purpose "in which the general interest of the community, as opposed to the particular interest of individuals, is directly concerned". Applying principle it is clear that the sale to the appellants would be in the interest o, a group of individuals and, therefore, not in the interest of a public purpose. Having examined the decisions cited at the Bar with some care, we have come to the conclusion that the High Court was right in refusing to interfere with the order of the Commissioner. The Commissioner had duly applied his mind to the conditions prescribed in Section 111 of the Ordinance and had given as many as four reasons for his order. It cannot be said that these reasons were wholly irrelevant. We have endeavoured to show earlier that the order of the Commissioner certainly was neither without jurisdiction nor did it suffer from any error apparent on the face of the record. In these circumstances, we would dismiss this appeal, but, since the Commissioner of the Karachi Division is also the Chairman of the Evacuee Trust Board, we would also like to draw his attention to the decision of this Court in the case of Tikamdas so that when considering whether the resolution of the Karachi Municipal Corporation, passed on the 3rd September, 1971, should be approved or not, he will keep in mind the observations therein made regarding the plans of the Trust Committee for leasing out these plots to others. This appeal is accordingly dismissed but since the questions of law raised in this case w,-re not entirely free from difficulty, we make no order as to costs. Appeal dismissed.