2023 PLP 820 (MLD)

Through this Intra Court Appeal under sections 3 and 5 of the Law Reforms Ordinance, 1972, the Appellant has impugned order dated 31.10.2022, passed by the leaned Single Judge in Chamber, whereby his writ petition has been dismissed.

2. Learned counsel for the Appellant submits that the impugned order is illegal and the result of misreading/non-reading of the relevant record. He further submits that the Appellant is claiming proprietary rights over the land bearing khasra No.70/21 which is a residential area and do not come within the category of pond of the village. He maintains that the Appellant has also filed an application before the Governor of the Punjab who has decided the same in his favour, vide order dated 10.07.2012, but this fact has also been ignored by the learned Single Judge in Chamber, while dealing with the matter in a sketchy style.

3. When confronted how this appeal is maintainable and through which instrument the Appellant is claiming proprietary rights over the land in question, learned counsel could not satisfy the Court and just reiterates his submission made in this appeal. The land in possession of the Appellant is a State land which is being used for water pond as is evident from relevant revenue record. Moreover, earlier the matter of illegal occupation by the Appellant over the land in question was also agitated by some residents of the same vicinity before the concerned revenue hierarchy in terms of section 175-A of the Land Revenue Act, 1967, which culminated into initiation of proceedings under sections 32 and 34 of the Colonization of the Government Lands Act, 1912 against him as depicted from the impugned order. Thereafter, appeal of the Appellant was dismissed by Executive District Officer (Revenue), Okara on 10.05.2004 and his subsequent revision petition before the Member Board of Revenue was also failed. From perusal of the impugned order, it reveals that the Appellant has also availed remedies before the Civil Court concerned and the Ombudsman Punjab but all in vain.

4. This is a case of illegal occupation over the State land by a person who could not prove his stance with the cogent inspiring evidence. The pond is being used for waste water as is evident from the record. Significant to mention here that the ponds play pivotal role in the provision of ecosystem services to society, including water purification, flood alleviation, irrigation, watering livestock, fish production, support for pollinators, and climate change mitigation. Recently, a learned Division Bench of this Court in the case of Messrs Iqbal Mining Co. through Partners and 6 others v. Punjab Environmental Protection Agency and 4 others (2022 CLC 1473) has discussed the issue relating to protection of environment in light of the relevant provisions of the Punjab Environmental Protection Act, 1997 (the "Act"). Paragraph-5 and relevant portion from paragraph-6 of the said judgment are given below for ease of the matter:- "

5. So far as first ground is concerned the mitigation as sought by learned counsel for the appellants is within discretion of the respondent department and is purely a technical issue. The object of environmental laws is to ensure protection of environment including soil from toxic material in the waste of any Project. This Court in appellate jurisdiction cannot replace the direction of the respondent department particularly when it could not be shown to have been passed in violation of any law. The direction for treatment of water through solid waste management plan, therefore, cannot be interfered with.

6. The spirit of section 16 is based on the precautionary principle which requires the relevant agency to anticipate the danger and take immediate steps to prevent harm or danger to the environment. In this eventuality section 16 of the Act, 1997 empowered the Environmental Protection Agency (EPA) with regard to measures to be adopted by the lease holder in order to protect the environment during the currency of his lease period." The prayer made by the Appellant is hit by the Doctrine of Judicial Estoppel which has already been strengthened by this Court in the cases of Muhammad Umais v. Cantonment Board Rawalpindi and others (PLD 2022 Lahore 148), Syed Faisal Mehboob v. Federation of Pakistan and others (2022 CLC 1153) and Muhammad Azam v. Province of Punjab and others (2022 CLC 532) by setting certain principles on judicial restraint with observations that the Courts should exercise the judicial restraint from passing any adverse order or taking any adverse action which could potentially hinder or nullify any government initiative as it would badly hamper the positive initiatives being taken by concerned governmental authorities for the larger interest of the public or the country.

5. In view of the above, we have come to the conclusion that impugned order is not suffered from any material illegality or perversity because it finds support with relevant record, provisions of the applicable law and the jurisprudence developed by the Hon'ble Supreme Court of Pakistan from time to time, besides discussing almost every aspect of the matter, to reach the right conclusion that the State land is a public property, therefore, it cannot be sold out to the Appellant as no statutory provision is provided in the Colony Manual in this regard. This appeal fails and is dismissed as such. SA/M-44/L Appeal dismissed.