1988 PLP 1213 (MLD)

In this Constitutional petition the petitioners have challenged the auction of the land in dispute held on 30‑12‑1984 its subsequent confirmation dated 27‑2‑1985 and also consequential proceedings for its implementation in the revenue record.

2. The facts giving rise to the present writ petition in brief are that both the petitioners alongwith two others namely Maula Bakhsh and Ali Muhammad purchased land measuring 400 kanals 4 marlas through registered sale deed dated" 4‑9‑1965. Each of the vendees purchased 1/4th share in the land, as such, the petitioners' share comes to 200 kanals and 2 marlas. The land purchased by the petitioners was a share in Shamlat Deh. It is claimed by the petitioners that at the time of sale they were delivered possession of the land sold to them. In the year ‑1968‑69 consolidation operations started in the village and a mutation (Inteqal Ishtiraq) was sanctioned which is a necessary preliminary step towards consolidation and the entire land of the village was consolidated for re‑ distribution to the various owners. Proposals for method of distribution and consolidation were prepared. According to the petitioners the land given to them in lieu of purchased land comprised Khasra Nos.14207/3/4/4/5/1, 14208/3/4, 4 to 7, 8/1, 14209/3/4, 4 to 7 and 8, measuring 99 kanals, 18 marlas, qua petitioner No.1 and Khasra Nos.14207/1‑2, 3/1, 8/2, 9,10, 14209/1,2, 3/1, 8/2, 9 and 10 measuring 99 kanals 2 marlas, qua petitioner No.2. Both the petitioners were issued Parcha Khatunis Ishtemal on 28‑8‑1971 mentioning therein Schemes Nos.1699 and 1700 respectively. However, subsequently it appears that the consolidation scheme was reviewed through mutation No.4307 passed on 2-3-1974 and a fresh mutation of consolidation (Inteqal Ishtiraq) was sanctioned. According to the petitioners Schemes Nos.1699 and 1 ;'stn in respect of the land of the petitioners were not distributed and the said khasra Numbers previously given to them were allowed to them through documents Annexures D/1 and D/2 issued to them. According to the petitioners they are in possession of the land,‑,. . comprising the said Khasra Numbers. I have gathered from the comments filed by the Deputy Commissioner as also the Consolidation Officer which have also been signed by the Addl.‑Deputy Commissioner (Cons.) Muzaffargarh/Layyah that total land of the village was 150220 acres and it was found during inspection by the Addl. Commissioner (Cons.) Multan Division, Multan that there were numerous discrepancies in the Scheme and certain irregularities also came to light. One of them being that the area resumed under M.L.0.89 in favour of Central Government was not properly adjusted, therefore, the Addl. Commissioner (Cons.) Multan Division vide his order dated 11‑2‑1977 set aside the order of confirmation of scheme passed by the A.C.O. dated 31‑5‑1975 and a direction was given to the Add. Deputy Commissioner (Cons.) to finalize the re consolidation of the village. The other illegality in the consolidation proceedings as pointed out by the A.C. Layyah in his parawise comments was that the said land could not be included it the consolidation operation unless a permission was obtained from the Board of Revenue. From these facts it is manifest that undivided share in the land vested in the Central Government as a consequence of resumption of land under M.L.R.89. The Deputy Commissioner, Layyah, auctioned the said undivided share of Central Government land in 65 other lots alongwith land in dispute on 30‑12‑1984 and the land being claimed by the petitioners through Annexures D/1 and D/2 was disposed of in the said auction being lots Nos.22 and 23 in favour of respondents Nos.7 and

8. It may be mentioned that the auction of the land under these lets was by specific Khasra. Numbers. The auction was confirmed by the Commissioner on 27‑2‑1985. In pursuance to the said auction a 'robkar' was issued by A.C. Choubara to the Tehsildar Consolidation, Tehsil Choubara regarding these two lots for implementation and delivery of possession to the said auction purchasers of the land sold to them. The petitioners have called in question these auction proceedings and subsequent acts of its implementation through this writ petition.

3. I have heard the learned counsel for the parties. Sh. Zia‑.ud‑Din Ahmad Qamar, Advocate, who appeared on behalf of Mr. Noor Muhammad Awan, learned counsel for respondents Nos.7 and 8 who are the auction purchasers placed written statement on the record and it was stated by him that no further arguments on their behalf were to be addressed and whatever had been stated in the written statement may be considered as arguments on their behalf. Learned counsel for the petitioners have been heard and I have examined the record which was produced by Mr. Javed Iqbal, Assistant District Attorney, Chaubara in sealed condition which was de‑sealed in the presence of the learned counsel for the petitioners and others. The objections raised on behalf of respondents Nos.7 and 8 are that the petitioners having purchased undivided share in Shamlat Deh land from its muslim owners, therefore, they at the most could claim that after consolidation they be given equivalent land and could not claim specific khasra numbers as such they had no locus standi to file the writ petition and challenged the auction of land in respect of share of Central Government in the land which vested in it as a consequence of resumption under M.L.R.89. It has also been pointed out that the writ petition was premature inasmuch as the consolidation was yet to be finalized and the petitioners should wait till in consolidation proceedings they were given the land in lieu of the land purchased by them. It has also been pleaded that the petitioners were estopped from filing writ petition as land proposed signed to be given to them in consolidation as such they could not plead that the land by specific khasra numbers as mentioned in Annexures D/1 and _D/2 be given to them. I have heard the departmental representatives who have taken me through the record.

4. The main question is as to whether the disposal of undivided share of Central Government in the land in dispute was in accordance with law and whether the petitioners could maintain writ petition against the said disposal through auction. The .officials appearing on behalf of respondents Nos.1 to 6 stated that the law which governs the matter of disposal of the land is the Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975). The relevant provision of law is contained in section 3 of the said Ad, relevant portion which is hereby reproduced below for facility of really reference:‑ "S.3 . " (a) . (b) in the case of rural properties, by the Board of Revenue of the Province under a Scheme to be prepared by the Provincial Government in this behalf‑ Provided that agricultural land occupied by any person continuously for four harvests immediately preceding Kharif 1973 shall first be offered for sale to such person unless an order of ejectment has been passed against him in respect of such land; Provided further that only so much land shall be offered to such person as does not together with land already held by him, exceed a subsistence holding within the meaning of the Land Reforms Regulation, 1972." It is manifest that the disposal of land is to be made by the Provincial Government under the said law and it is requirement of the said section that a scheme for disposal of such unallotted/unoccupied evacuee rural agricultural' land is to be framed. The Provincial Government prepared a scheme for disposal of such land, chapter‑II of which deals with disposal of land. According to Paragraph 2 of this Chapter the agricultural land occupied by any person continuously for four harvests immediately preceding Kharif 1973 shall first be offered for sale to such person on the terms mentioned thereunder. According to para.3 thereof all unallotted/unoccupied rural evacuee agricultural land held by the occupants in excess of subsisting holding which did not fall under para.2 is required to be put to auction according to the procedure chapter‑IV of the Scheme which relates to disposal of unallotted and unoccupied land. According to para.4 of Chapter‑IV thereof the available unallotted and unoccupied vacant rural agricultural land is to be disposed of by means of unrestricted public auction according to the terms and conditions given thereunder. As to what are the terms and conditions on which such land was to be auctioned, I would later on deal with this subject. It appears that it was under this agricultural land. According to sub‑pare (3) of Chapter I of this Scheme unoccupied land has been defined as evacuee unallotted land which is not in possession of any person including the land in adverse possession which was subsequently amended and the words "including the land m adverse possession after Kharif 1971" have been added. The case of the petitioners is that hey being in occupation and possession of this land withspecific Khasra numbers which has, been auctioned in favour of respondents Nos.7 and 8 being lots Nos.22 and 23, had the prior right to be given that land and the same could not have been auctioned. The possession of the petitioners over these khasra numbers has been denied by respondents Nos. 7 and 8 as also by the Deputy Commissioner in its comments.

5. On the other hand in the report riled by the Consolidation Officer Layyah which has also been signed by the Additional Deputy Commissioner (Cons.) Muzaffargarh it has been stated in the end that "as a result of auction/issue of warrants of possession and sanction of mutations Nos.4339 and 4340, the land which had been possessed by the petitioners (but not allotted as a result of finalization of consolidation proceedings nor proposed to be allotted during consolidation proceedings even)has been transferred in favour of the auction bidder i.e. Manzoor Ahmad s/o Fateh Muhammad, hence the petitioners have now lodged the writ petition No.545/87 in the Lahore High Court Multan Bench." In this concluding part of the report the possession of the petitioners or the land in dispute the possession of which was sought to be given to the auction purchaser through robkar was indirectly admitted and from which it is also clear that the land which was auctioned and the possession of which was being delivered to the auction purchaser was identified to be the same land which the petitioners claimed to have possessed. Be that as it may, this being a disputed question of fact, no enquiry in this respect can be embarked upon in Constitutional jurisdiction under Article 199 of the Constitution. At present suffice it to say that this much material is sufficient to hold that the petitioners had such an interest in the matter which gave them locus standi to maintain the W& petition, as according to the judgment reported as Mian Fazal Din v. Lahore Improvement Trust, Lahore etc.`(P L D 1969 S C 223) in order to maintain writ' petition it is not necessary that a petitioner should have a juristic right and it was sufficient if the petitioner would stand to gain a benefit if the public functionaries acted in accordance with law.

6. Now I come to the real question in controversy as to whether the auction of the land is vitiated by non‑compliance of law as such the same could be interfered with in Constitutional jurisdiction. According to the case as made out by the D.C. in its report and comments the consolidation proceedings in the village were set aside due to illegalities. One of them being that the land owned by Central Government could not be brought under consolidation without the prior approval of the Board of Revenue. Keeping in view the provisions of Act XI,V of 1975 and the command of law that the property which vested in the Central 6overament was to be disposed of in accordance with the provisions of the said Act and the Scheme made thereunder from which it can safely be presumed that it was in the fitness of things and proper that the share of Central Government had been separated through partition in the first instance so that it could be convenient do dispose it of under the various provisions of Scheme first offering it t0 its occupants and thereafter through auction, without which it was difficult to determine as to who are the persons in occupation of land owned by Ventral Government. If the share of Central government is allowed to remain joint then every inch of it shall be deemed to be jointly owned and possessed by all those persons who are joint owners in possession thereof. The auction of specific Khasra numbers under lots Nos.22 and 23 treating it as separated share of the Central Government even if taken as implied partition of the said share even then the claim of the petitioners as alleged occupants of the said land was to be considered before the same was put to auction. According to Section 3 of the Act itself such a land was to be offered to the person who was in its occupation. In the Scheme as noted above in Chapter‑III thereof after para.3 the following proviso was added which reads as under:‑ "Provided that unauthorized occupants shall have the right of first purchase." From this, the intention of law‑maker was clear that even unauthorized occupants were vested with a right of first purchase. This amendment was made on 24‑6‑1984. It is not the case of any of the respondents that so far as the petitioners t were concerned they were either heard or given an opportunity to place their case the authorities before the land was put to auction as unoccupied/unallotted vacant rural agricultural land. The petitioners were entitled to establish before the authorities that they being the alleged occupants of this land fulfilled the conditions for its transfer and retention by them, before the same was put to auction which right could hot have bees denied to them. Even otherwise I have noticed from examination of the record that the auction itself was not conducted 4trictly in accordance with Chapter‑IV of the Scheme. According to sub‑para (1) under para 4 of Chapter‑IV of the said Scheme auction is to be conducted by a Committee consisting of A.C., EACO and Ilaqa Magistrate of the area concerned, where there is no Baqa Magistrate any Magistrate of 1st Class appointed by D.C. I find from the record after examination that the Ilaqa Magistrate was not joined. in the conduct of auction proceedings whereas some other Magistrate 1st Class was appointed as member of the Committee. There is nothing on the record that there was no Ilaqa Magistrate. This aspect gains importance since the petitioners are challenging the auction proceedings having been taken mala fide through under‑hand means in order to benefit certain persons. In sub‑para (2) of the said para.4 it is provided as mandatory requirement that the highest bid shall not be below the reserved price which may be accepted or rejected by the Deputy Commissioner/SO without assigning any reason. In para (8) of Chapter‑III of the Scheme it is provided that the reserved price will be fixed on the basis of average market price for preceding 12 months provided that such price shall not be less than the price calculated at Rs.100 per P.I.U. based on classification of soil made in Rabi 1974 for the area. On examination of the record I find that the reserved price was determined according to this formula at Rs39,200 per lot which was, however, auctioned at Rs.13,

000. The D.C. instead of confirming the said auction who was under the Scheme the only authority competent to do so, got the same confirmed from the Commissioner on the report sent by him recommending to him to confirm the auction below the reserved price stating that the land was in neglected condition. This report was made on 10‑2‑1985 and the Commissioner approved the same on 27‑2‑1985. Since there was no provision for the Scheme to auction: the land below reserved puce in any circumstances, therefore, wither the D.C. nor the Commissioner were competent to confirm the auction below reserved price, as such, the recommendation of the D.C. and the confirmation by the Commissioner of the auction are all violative of law and illegal. I have also noticed that the D.C. overacted is adopting the procedure which was not provided by the Scheme for the reasons best known to hum and thus it can safely be gathered from his conduct that he showed anxiety in auctioning the land in haste without first complying with the requirements of law and getting the auction confirmed from the Commissioner on a report that the land was in neglected condition. He himself was competent authority but did not confirm the same himself. He tried to shift the responsibility to Commissioner so as to give authenticity to auction proceedings and to raise a plea, which has actually been raised in the comments food by the D.C. that an officer of the status of Commissioner confirmed the auction, therefore, the genuineness of the same should not be doubted which is an attempt and effort on his part to Provide a legal cover to an obviously illegal ad. The true facts appear to have not been placed even before the Commissioner when the case was sent to him for confirmation of the auction because in the report an impression was given to him that the land fetched low price on account of being in neglected condition which fact is belied ' by document Annex: `J' placed on the record by the petitioners according to which sac squares of land out of the auctioned land were sold for an amount of Rs.8,10,000 and against the remaining 27 Squares of land a loan of an amount of Rs.80,M,000 (Re.eighty tic) has been obtained which documents have not been denied by respondents Nos.7 and 8 which by themselves established that the land which via: auctioned was very valuable land and the public exchequer has been made to suffer immensely on account of auction of land in illegal manner contrary to the provisions of law. The petitioners had purchased the land from Muslim owners who held share in the entire land of the village and they were very much within their rights to claim the land occupied by them under the Scheme if they could establish on the record that they fulfilled the conditions qualifying them to claim a right of first purchase. Apart from this fact they were also entitled to claim land in the consolidation in lieu of the land purchased by them from Muslim owners. No doubt they were interested in the matter and have been deprived of a right on account of impugned illegal action of auction of land, Before any order adverse to the interest of the petitioners was passed or any action detrimental to their alleged rights was taken it was necessary to adjudicate upon their claim to the transfer of the land as its alleged occupants and without that the land could not have been treated as unoccupied land so as to dispose it of straight away through auction,

7. For the foregoing reasons the writ petition succeeds. It is hereby accepted, the act of auction of the land on 30‑12‑1984 in favour of respondents Nos.7 and 8, its confirmation and all subsequent proceedings taken in pursuance thereof to implement the same are hereby declared to have been taken and done without lawful authority and of no legal effect and are, therefore, quashed. The I parties are, however, left to bear their own costs. S.Q/M‑695/L Petition accepted.