2020 PLP 2660 (YLR)

This Intra Court Appeal arises from the petition brought by the appellant under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, that is, W.P. No.35998 of 2020 wherein prayer was made that the respondents be restrained from including the land under cultivation of the appellant for auction to be held on 13th August, 2020 and consequently, by allowing the appellant to deposit the arrears of rent the respondents be directed not to dispossess him from the land.

2. The land under possession of the appellant is Charagah, which was leased out to him under the Temporary Cultivation Scheme. The tenure of the lease had been extended from time to time. The documents available on record suggest that on 10th November, 1998 the appellant made last payment of rent. Upon noticing this fact, the learned Single Judge-in-Chamber came to the conclusion that the appellant was defaulter. On the basis of said conclusion the prayer made in the petition was declined and the same was dismissed through impugned order dated 13th August, 2020.

3. It is apposite to state here two salient features of Charagah land. Firstly, the Charagah lands are excluded from every grant; and secondly, it cannot be used for any purpose except with the prior permission of the Board of Revenue and that too for the public purpose only. It appears that in pursuance of the above-stated two features of Charagah land the Government of the Punjab, Colonies Department, Board of Revenue through Notification No.2106- 2019/753-CL(I) dated 13th September, 2019 had decided that upon payment of arrears of rent from 30th June, 2016 to 30th June, 2020 with annual increase of 10% the temporary lease of the existing lessees of Chragah land would be extended till 30th June, 2020. In view of this statement of condition for extension in lease, we asked the appellant's counsel to show us any document to establish the fact that the lease of the land under possession of the appellant existed prior to issuance of the said Notification. We are afraid neither the available record suggests that the lease of the land was extended after the year 1998 nor the appellant's counsel is in a position to tender any document to establish that the appellant in pursuance of Notification No.2106- 2019/753-CL(I) dated 13th September, 2019 had deposited the arrears of rent or made a written request seeking permission to deposit arrears of rent. The appellant, therefore, is not only a defaulter but also has unauthorized possession of the land.

4. Needless to observe here that the above-stated circumstances of the case indicate that the status of the appellant, at best is of a trespasser and thus, the doctrine of Istehsan, as per principle settled in "Managing Committee Masjid Muhajrin v. Mst. Zainab Bibi and others" (1974 SCMR 230), cannot be applied in his favour so as to perpetuate his unauthorized possession of State Charagah land. The learned Single Judge-in-Chamber, therefore, rightly declined the prayer made in the petition with the observation that the appellant, if so desired, have a right to participate in the auction proceedings.

5. Dismissed. SA/S-48/L Appeal dismisse