1998 PLP 518 (SCMR)

MUKHTAR AHMAD JUNEJO, J.

Petitioners Muhammad Younis and others who are legal heirs of Haji Muhammad have sought leave to appeal against a judgment of the Lahore High Court, Multan Bench, dated 24-10-1995 in Writ Petition No.4100 of 1995. On 11-11-1959 the Municipal Committee Dera Ghazi Khan leased out to Haji Muhammad for three years the disputed piece of Nazul land measuring one Kanal and 5 Marlas situated in revenue estate of Dera Ghazi Khan Gharbi. Haji Muhammad raised some construction over the disputed property and when he died on 28-7-1990, he was survived by the present petitioners and respondent No. l 1 Muhammad Asif. On 1-7-1985 legal heirs of Haji Muhammad moved the Board of Revenue for proprietary rights in the disputed property and expressed their willingness to make full payment for the same, with no success. They took the matter to the Lahore High Court through a Writ Petition which was decided on 25-2-1994 and the Member (Colonies), Board of Revenue was directed to decide the matter within a fired period. Ultimately, the case came to be heard by the Member (Judicial-III), Board of Revenue Punjab, who, under a very lengthy order, dated 28-2-1995 observed that the disputed land was the State land and vested in the Provincial Government and that the Municipal Committee Dera Ghazi Khan was not competent to sub-lease it except on Teh-Bazari basis. After taking such view, the Member declined request of the petitioners. The k petitioners took the matter to the High Court in Writ Petition No.4100 of 1995 which was dismissed under the impugned judgment. Hence this petition. Rana Abdul Rahim Khan, learned counsel for the petitioners argued that to petitioners had right to obtain proprietary rights in respect of the disputed land, in view of Board of Revenue Punjab Memorandum No.3137-93/3342-CS VI, dated 12-10-1993 laying down that the State lands are to be disposed of through sale by private treaties to the occupants who were in possession of the same for more than a decade and had raised permanent structure. It was next argued that the petitioners and their predecessor-in-interest Haji Muhammad had spent huge amount in raising construction over the disputed land and in the event of their being deprived of the same, they would undergo enormous losses. Finding of fact recorded by the Member, Board of Revenue in his order, dated 28-2-1995 that the disputed land was State land and vested with the Provincial Government, has not been assailed It has also been mentioned in the said order that the Municipal Committee Dera Ghazi Khan was not competent to sub-lease the disputed property to the petitioners except on Teh-Bazari basis and that no construction could have been raised over there. Said order further shows that the disputed land is required in the public interest as the bus-stand was being shifted from its existing site. Haji Muhammad, predecessor of the petitioners was leased out disputed land by the Municipal Committee, which was not competent to do so. However, the period for which the land was given on lease is over. The office Memorandum, dated 12-10-1993 issued by the Board of Revenue Punjab lays down policy with regard to disposal of State land occupied by unauthorised occupants. Relevant part of said memo, dated 12-10-1993 reads as follows:

"The Government of the Punjab, with a view to protecting its property from going into unscrupulous hands, has decided that in future the State lands be disposed of through sale by private treaty to those occupants, who are in occupation of State land for more than a decade and raised permanent structure, at current market price plus 10 % surcharge on account of sale by private treaty and 50% penalty for unauthorised construction/occupation. " Learned counsel for the petitioners has not been able to make out that said Memo, dated 12-10-1993 has some statutory protection and that its provisions can be enforced through a writ petition. In the instant case the disputed land was obtained by deceased Haji Muhammad from a Municipal Committee, which had no competency to lease it and more over no construction could be raised over it. Furthermore deceased Haji Muhammad unauthorisedly set-up a workshop over the disputed land and sub-leased a portion of the same in favour of one Nasrullah Khan for money consideration, and thus, violated the very terms and conditions of the lease deed, by virtue of which he came into possession of the disputed property. Language of Memo, dated 12-10-1993 reproduced above, does not make it obligatory upon the Government of Punjab to grant State land to each of its occupants irrespective of the fact that such land may be required for public purpose. Order of' the Member, Board of Revenue, dated 28-2-1995 shows that the disputed land has been earmarked for city park and the bus stand is also being shifted for the development of city park in the larger public interest. As against this, it was contended before the High Court on behalf of the petitioners that the disputed land was being converted into a shopping center. This contention was not supported by any document. Learned counsel for the petitioners did not controvert the fact that the disputed land was State land. There are no good reasons to hold that fetters have been created by the memorandum, dated 12-10-1993 on use of the disputed land. The High Court has rightly observed that the constitutional jurisdiction being discretionary and equitable in nature, cannot be exercised in favour of the petitioners who were holding over the disputed land, since the death of Haji Muhammad. In exercising its jurisdiction under Article 199, of the Constitution of Pakistan, the High Court appears to have proceeded correctly and there is no miscarriage of justice. Leave to appeal is, therefore, declined and this petition stands dismissed. A.A./M-3311/S Leave refused.