1986 PLP 1819 (CLC)

SAEEDUZZAMAN SIDDIQUI, J.‑‑This order will govern the disposal of abovenoted two Constitutional Petitions, namely 190/84 and 7/1985. In both the petitions the petitioners have challenged the grant made by the Government of Sind of two separate pieces of land out or survey No.626, situated in Pathan Colony, Sukkur, admeasuring 2,000 square feet, and 5,000 square feet respectively to respondent No.l in the above petitions separately. The petitioners in the above petitions jointly contended that the area of Plot No. 626 leased out to respondent No.1 in the above petitions is an amenity plot reserved for children park and as such its disposal by the Government of Sind for residential purposes and for construction of clinic is in contravention of M.L.O. 34, 89 and M.L.O.

60. It is further contended by the learned counsel that the disposal of land in favour of respondent No.l in the above petitions by Sind Government was in any case violative of statement of condition for grant of State land issued on 12‑5‑1975 under section 10(2) of Colonization of Government Land (Punjab) Act, 1912 by the Government. The learned counsel for respondent No.l on the other hand supported the grant made in favour of their respective clients by the Provincial Government and urged that there is neither any evidence nor any justification to hold that the land granted to their clients was an amenity plot reserved for children park and further contended that Provincial Government had absolute discretion both under the Act and the statement of conditions issued under the act in granting leases of State land and selection of lessees and as such the grants made in, favour of their respective clients are valid and binding. The learned A.A.‑G who appeared for the Provincial Government supported the contention of private respondents in the two petitions and additionally contended jointly with the private respondents that the petitioners have no locus standi to challenge the orders of Provincial Government granting land to respondent No.l in the above petitions. The order of grant made in favour of respondent No.1 in petition No. 190/84 is dated 16‑11‑1982 while in petition No. 7 of 1985 it is dated 25‑9‑1984. It is quite clear from the two orders that the land was leased out to the respondents by the Government of Sind (Land Utilisation Department) with the approval of Governor and M. L. A . Zone 'C'. The first objection of petitions regarding disposal of the plots is that plot 626/1 is an amenity plot reserved for children park from time immemorial and as such it could not be disposed of either for residential purposes or for any other purpose by the Government. The learned counsel for the petitioners frankly admitted that they have not produced any lay out plan of the area wherein the disputed plot is shown as the amenity plot reserved for children. They, however, contended that the disputed plot was once disposed in the year 1969 by the then Deputy Commissioner, Sukkur, in favour of one Moina Agha for residential purposes but on the representation of Agha Fakhruddin petitioner in Petition No. 190/84, it was cancelled by the then Commissioner and reserved for children Park. (I will hereinafter refer the petition in Petition No. 190/84 by his name for the sake of convenience). It appears that Moina Agha wife of Agha Nasrullah Khan of Sultankot, applied to Deputy Commissioner, Sukkur for allotment of 7,200 square feet of land out of C.S.No.626 which was granted by him by order, dated 21‑10‑1969. Agha Fakhruddin made a representation to Deputy Commissioner, Sukkur against disposal/grant of the above land to said Moina Agha on 29‑10‑1969 and prayed for stay of further action. The Petitioners have mainly relied on the aforesaid representation of Agha Fakhruddin in support of their contention that the plot in dispute is an amenity plot. I may reproduce here the above representation of Agha Fakhruddin addressed to Deputy Commissioner, Sukkur, which is as follows:‑

"To The Deputy Commissioner, Sukkur.' Sub: Request for granting the stay order in respect of construction over the Revenue plot adjacent to the residence of Medical Superintendent, District Headquarter Hospital, Sukkur and cancellation of the grant of the plot to Mst. Moina wife of Agha Nasrullah Khan. Sir, I undersigned Agha Fakhruudin khan son of late K.B. Agha Nizamuddin Khan request the following few lines for your kind consideration and necessary action. (1) That the Revenue plot opposite to my house and adjacent to the residence of Medical Superintendent in Pakistan Colony, Sukkur has been granted to Mst. Moina Begum wife of Nasrullah on 21‑10‑1969 by Mr. Viqar Rustam Bakhshi, C. S. P. the then Deputy Commissioner, Sukkur at the rate of Rs.1.50 paisa per sq. ft. (2) That the measurement of the said plot is 7,200 sq. ft. granted out of total plot of approximately 9,000 sq. ft. By this way the remaining portion of the plot has been spoiled. (3) That the grantee Mst. Moina is sister of Mr. Ahad Jan Agha, C.S.P. Colonization Officer, Sukkur and this grant is result of favouritism. In spite of the instructions from the Commissioner that the Revenue plot should be put in open auction but this plot was given by the then Deputy Commissioner. Sukkur on the very day of relinquishing of his charge. (4) That the said plot is the annexe of the residence of Medical Superintendent, District Headquarter Hospital, Sukkur and vegetables were cultivated over the plot. Still upto this time there is hospital water tap for washermen of the District Headquarters Hospital, Sukkur. (5) That this plot will be more suitable as a recreation park for children and ladies of the locality as there is no such facility existing in this area. (6) That abovementioned plot if put to auction it will fetch more than Rs.l0 per sq. ft. as it is in the heart of the town and in ' best locality of the city. (7) It is, therefore, requested that abovementioned plot granted in the name of Mst. Moina may kindly be cancelled and put to in open auction. It is further prayed that till the matter is finally decided, Mst. Moina Nasrullah Khan be restrained from raising any construction on the said plot." The above representation of Agha Fakhruddin is dated '"1‑lt)‑1969. It is quite clear from the above document that the mo‑sin grievance of Agha Fakhruddin against disposal of the plot was that it was given to Moina Agha as an act of favouritism on the part of Deputy Commissioner. Sukkur, and that it should have been disposed in public auction. The condition of this plot in 1969 as described in the above representation was that it was used as an annexe of the residence of Medical Superintendent, District Headquarter Hospital, Sukkur, and vegetables were cultivated over it and there, was in existence over it one water tank for washermen of the hospital. No doubt in the above representation Agha Fakhruddin also made a sug‑stion for utilization of this plot as a recreation park for children and ladies of the locality as there was no such facilities existing in the locality but in the end prayer was made to dispose of the same by public suction. It is, therefore, quite clear that until 1969 neither the plot was used as an amenity plot for children park nor it was reserved for such purposes. On the above representation of Agha Fakhruddin, it appears that the Deputy Commissioner, Sukkur, cancelled the allotment of Moina Agha and ordered its disposal by public auction by order, dated 7‑11‑1969. Agha Fakhruddin appears to have challenged the above order of Deputy Commissioner by way of appeal before the Additional Commissioner, Khairpur Division, and the order of auction was stayed in appeal as an interim measure on 4‑12‑1969. Thereafter, when the appeal of Agha Fakhruddin came up for hearing before Additional Commissioner, Khairpur Division, on 31‑12‑1969, it was withdrawn on the ground that the Deputy Commissioner, Sukkur, had withdrawn the order allotting the land to Moina Agha and directing disposal of land by public auction. It is quite significant that the petitioners all along contended before us that they had agitated against the disposal of plot to Moina Agha as well as its disposal by public auction by the Deputy Commissioner on the ground that it was a children park but neither they produced the copy of memo. of appeal of Agha Fakhruddin submitted to Additional Commissioner, Khairpur Division, against the order of Deputy Commissioner, Sukkur, nor they produced the order of Deputy Commissioner, Sukkur, dated 7‑11‑1969 and 29‑12‑1969 to substantiate their contentions. The copies of two orders, dated 4‑12‑1969 and 31‑12‑1969 passed by Commissioner, Khairpur Division, on the appeal of Agha Fakhruddin do not show at all that the cancellation of allotment of Moina Agha or the recalling of order for auction of the plot was based on the reason that the plot is reserved for amenity purpose. It appears that in the year 1970 one Ghulam Muhammad Paracha, a resident of Sukkur again applied to the Deputy Commissioner, Sukkur for grant of an area of 7, 200 square feet out of the disputed survey number. It further appears that the grant was again opposed and the Deputy Commissioner visited the site on 10‑‑2‑1975 in the company of S.P. Sukkur and Administrator Peoples Municipal Committee, Sukkur, and taking into consideration the stay order granted by the then Additional Commissioner on the appeal of Agha Fakhruddin observed that the plot in dispute may be used as children park and cannot be allotted for private purposes. It will be useful to reproduce the order of Deputy Commissioner passed on 13‑3‑1975 on the application of Ghulam Muhammad Piracha which is as follows:‑-- "READ No. RB(c)/‑2501 Sukkur, dated 13‑3‑1975. Application, dated 15‑5‑1970 from HM. Ghulam Muhammad Pirecha resident of Piracha House, Station Road, Sukkur requesting for grant of plot measuring 200 sq. ft. from U.S. No. 626/1, Ward 'C' Deh Old Sukkur for construction of Charitable Zanana Hospital, Sukkur. Perused relevant papers and the orders passed for disposal of the plot and stay order No. S‑13‑3‑292‑LG/69/412 issued by the Additional Commissioner, Khairpur on the appeal preferred by Agha Fakhruddin son of late K.B. Nizamuddin. ORDER OF THE DEPUTY COMMISSIONER, SUKKUR. I visited the site on 10‑2‑1975 in company of S.P., Sukkur and Administrator, P.M.C., Sukkur. As per stay order already granted by the then Commissioner the plot may be used as a children's park and may not be allotted for private purpose. Sd/‑Deputy Commissioner, Sukkur. A reading of the above order will show that it was passed on the basis of stay order granted by the then Additional Commissioner, Khairpur, on the appeal of Agha Fakhruddin on 4‑12‑1969 which came to an end on 31‑12‑1969 when Agha Fakhruddin withdrew his appeal before the Additional Commissioner. This fact was, however, not noticed by the Deputy Commissioner while passing the above order. Apart from it a reading of the above order will show that it neither amounted to reservation of the plot as children park nor it could create any such effect. It was merely in the nature of a recommendation by the Deputy Commissioner to use the same as children's park but there is nothing on record before us to show that the above recommendation of the Deputy Commissioner was accepted by the Provincial Government or any other competent authority in his behalf. It may be mentioned here that alongwith the comments in Petition No. 190/84, respondent No.3 has produced a letter, dated 29‑7‑1975 addressed by the then Administrator, Peoples Municipality, Sukkur to Commissioner, Sukkur Division, in connection with the request of one Nazir Khan regarding the disputed plot in which it is stated that the disputed plot is not an amenity plot and it is not needed by municipality for park in view of its small size and establishment of another park at Pir Illahi Bux Tower, Sukkur. Before granting the land to the respondent No.1 in the above petitions, the Deputy Commissioner, Sukkur, again referred the matter to the Sukkur Municipal Corporation for the purpose of obtaining their no objection with regard to the utilisation of this plot for residential purpose and construction of clinic. The Mayor, Municipal Corporation by letter, dated 5‑9‑1981 informed the Deputy Commissioner that the Corporation had no objection to the allotment of portion of the disputed plot to the respondent No.l in Petition No. 190/84 which is situated near Dr. Nisar's Eye Hospital. Similarly, the Municipal Commissioner, Sukkur Municipal Corporation by letter, dated 27‑11‑1983 informed the Mukhtiarkar and City Survey Officer Sukkur, that they had no objection to the grant of an area of 5,000 sq. ft. out of the disputed survey number for construction of general hospital to respondent No. 1 in Petition No. 7 of 1985. It was only after no objection was given by the Sukkur Municipal Corporation in the above cases that their cases were forwarded for consideration to the Provincial Government and thereafter orders were made by the Government of Sind with the approval of Governor/ M. L. A. Zone 'C' for allotment of the land to the two respondents. It may also be mentioned here that even in 1975 when the application of Moina Agha was pending consideration of the Administrator, Peoples Municipal Committee, Sukkur by letter No. LG/63, dated 2‑4‑1975 intimated to the Private Secretary to the Minister for Housing, Town Planning and Local Government Department, Government of Sind, Karachi, that the plot in dispute belongs to the Revenue authorities and that Municipality has nothing to do with this plot. It was further stated in that letter that the Municipal Committee had no intention of applying for the plot under any Municipal scheme. In view of the above discussed evidence there is hardly any material before us to show that the plot in dispute was ever reserved or utilised for the purpose of children park. We accordingly repel the contention of the learned counsel for the petitioners that the disputed plots were amenity plots or that they were reserved for children's park. Having dealt with the first contention of the learned counsel for the petitioners we will now examine their second argument that the Provincial Government has acted in violation of statement of terms and conditions, dated 12‑5‑1975 in disposing of the plot to the two respondents in the above petitions. It may be mentioned here that in the two allotment orders issued in favour of respondent No. 1 in the above petitions, reference is made to the powers of Government under section 10 of the Colonization of Government Lands (Punjab) Act, 1912 and the statement of conditions issued by the Government under the aforesaid section on 12‑5‑1975. It is contended by the respondents jointly that the land in dispute being State land the Government was competent to dispose of the same in its sole and absolute discretion to such persons as it thought fit both under section 10 of the Act as well as under the statement of conditions issued on 12‑5‑1975. Section 10 of the Colonization of Government Lands under which the Government has exercised the power in granting land to the above two respondents in the petitions reads as follows:‑‑

10. Issue of statements of Conditions of tenancies.‑‑(1) 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 the Board of Revenue allot land to any person, to be held subject to such statement or statements of conditions issued under the 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." A careful examination of the above provision of law will show that under subsection (3) of section 10 of the Act when the Government has issued statement or statements of conditions under subsection (2) the Collector may subject to the control of the Board of Revenue allot land to any person in accordance with such statements of conditions. This restriction contained in section 10(3) of Act on the powers of the Collector to allot land only in accordance with the statement of conditions issued by the Government, does not affect in any manner the power of the Provincial Government to dispose of State land under subsections (1) and (2) of section 10 of the Act on such terms and conditions as it thinks fit.' We are, therefore, unable to accept the contention of the learned counsel for the petitioners that the Government having issued statement of conditions for grant of State land by notification, dated 12‑5‑1975, could not allot land to respondents contrary to these terms and conditions. The issuance of statement of terms and conditions by the Government under section 10(2) of the Act did not in any manner after the discretion of the Provincial Government to allot the State land to such lessees whom it considers fit on the terms and conditions which may not be in accordance with the statement of conditions issued by it under subsection (2) ibid. This is also clear from paragraph 3 of the terms and conditions issued by the Government under section 10(2) of the Colonization of Government Lands Act, on 12‑5‑1975 which reserves the right to the Government and gives absolute discretion for granting of leases and selection of lessees. In addition to it the learned counsel for the respondent in Petition No. 7/1985 also invited our attention to paragraph 18 of the terms and conditions issued by the Government, on 12‑5‑1975 which authorized the Government to lease out land to the Federal Government, autonomous bodies and semi‑autonomous bodies as well as to lease out the land on concessional rates free of charge for hospitals, dispensaries, maternity homes, educational institutions, mosques, graveyards or for other religious and charitable purposes. The allotment made in Petition No. 7/85 by the Provincial Government clearly shows that it was allotted to respondent No. 1 for the purpose of constructing a hospital and the use of this plot to any other purpose was prohibited under the terms of allotment. In these circumstances we do not find any substance in the objection of the learned counsel for the petitioner that the allotment of land to the two respondents in the above petitions by the Government was in excess of the power of the Provincial Government. In addition to the above the learned counsel for the respondent has also raised a preliminary objection as to the maintainability of these petitions which is also not without force. It is jointly contended by the learned counsel for the respondent No. 1 in both the petitions that the petitioners in these two petitions has no locus standi to challenge the transfer in favour of respondent No. 1 as they had neither any personal interest in the property nor they were applicants for allotment of this land. It is urged by the learned counsel jointly that the right asserted by the petitioners in the above petitions is in the nature of a right which they enjoyed in common with all the other citizens of Sukkur and, therefore, they are acting pro bono publico. We have already reached the conclusion that there is no evidence before us to hold that the plot in dispute was an amenity plot reserved for children park. This being so the Provincial Government was entitled to dispose of this plot either for residential purpose or commercial purpose. It is an admitted position that the two petitioners were neither granted these plots nor they were applicants for allotment of these plots. In these circumstances we agree with the learned counsel for the respondents that the petitioners had no locus standi in the matter to challenge the allotment of the land in favour of respondent No.

1. If any authority is needed in support of our above conclusion reference may be made to the case of Anjuman Araian Bhera v. Abdul Rashid and others P L D 1982 S C

308. In the above cited case the petitioners though were found to be in possession yet held to be acting in the capacity of pro bono publico for the reason that they had no personal right in the property. It will be advantageous to refer here to the following observations of the Hon'ble Supreme Court which appears at page 313 of the report of the above case. It reads as follows:‑

"We find force in the contention of Mr. Brohi. We observe that the only contention of the appellant to show its interest in the land in dispute is that it was in its possession. But this possession was illegal, unauthorized and had no legal sanction. Faced with this situation, the only argument, which the appellant's counsel could press; was that in transferring the area to Abdur Rashid (respondent No. 1), the law had not been followed. But this grievance was shared by the appellant alongwith numerous others and, therefore, his capacity, while agitating against the orders of transfer, was of a person raising a question pro bono publico. However, this Court has now held in several decisions that a party acting pro bono publico had no locus standi to call in question the transfer of property in favour of a third party unless he has a personal interest in the matter. We may add that a person can be deemed to be "aggrieved" if he has some interest in the corpus of the party, to which the law attaches some sanctity. It is only if the appellant can demonstrate some interest in the property, to which some legal sanctity was attached, can he be considered as an aggrieved party. However, the interest of a trespasser is not such an interest which has the blessings of any law. Hence he cannot maintain a writ petition. This view has consistently been expressed by this Court. In Abdul Ghafoor v. Settlement Commissioner, Rawalpindi etc. 1968 S C M R 1286, it was observed that "a trespasser was neither entitled to the transfer of a house under the Displaced Persons (Compensation and Rehabilitation) Act, 1958 nor competent to move the High Court in exercise of its constitutional jurisdiction." Again in Managing Committee, Muhajrin v. Mst. Zainab Bibi and others 1974 S C M R 230 it was observed that "the doctrine of "Istehsan" has never been applied in favour of persons in unauthorized possession of property". In Mirza Sardar Muhammad and others v. Pakistan and others Law Notes 1970 Lah. 736, wherein the petitioners therein had constructed a shop over the property and the notice of ejectment served by the Municipal Committee was challenged through a writ petition, it was observed that the petitioners had no right or title to remain on the property and, therefore, could not be allowed to perpetuate their unlawful possession, thus a trespasser has never been held to be a person, who is entitled to successfully invoke the writ jurisdiction of the High Court, as he lacks the locus standi to do so." There now only remains to be dealt with one more argument of learned counsel for the petitioners that the disposal of this land by the Provincial Government also offended against the provisions of M.L.O., 34, 60 and

89. We have already reached the conclusion that there is no evidence to support the contention of the petitioners that the plots in question were amenity plots or reserved for such purpose therefore, the provisions of M.L.O. 34, 60 or 89 were not attracted in the present cases. In view of the above discussion we find no substance in these petitions which are accordingly dismissed but in the circumstances of the case we will make no order as to costs. A . A . Petitions dismissed.