1995 CLC 626 (PLP)

MALIK MUHAMMAD QAYYUM, J.‑‑‑This judgment shall dispose of Writ Petitions Nos. 234/87 and 1296/92, the first of which has been filed by the Cantonment Board, Bahawalpur and the second by the Bahawalpur Gazetted Officers Cooperative Housing Society as these petitions involve the same controversy.

2. The necessary facts forming background of the dispute between the parties are that initially Bahawalpur Improvement Trust was the owner of properties which are now in dispute and details of which are given in Annexures‑`D' and `E' to Writ Petition No. 234/87. It is a common ground between the parties that the said Trust along with certain other Trusts was dissolved by the Provincial Government under section 103 of the Town Improvement Act, 1922 through Notification No. SO.V(LG)‑5‑1/60 dated 1‑12‑1969 which also directed that the respective Municipal Committees shall take over all the assets and liabilities of these Trusts and shall carry out their functions under section 25 of the Municipal Administration Order, 1960.

3. Earlier on 14‑2‑1968; the Federal Government in exercise of the powers under section 3(1) and (2) of the Cantonment Act, 1924 had declared certain specified areas in Dera Izat and Hansra villages of Tehsil and District Bahawalpur to be "Bahawalpur Cantonment" for the purpose of the said Act and all other enactments for the time being in force. By a subsequent notification dated 15‑10‑1980 certain other areas were included while some were excluded from the limits of Bahawalpur Cantonment. There is no dispute that the properties which are in dispute in the present petitions are situated within the extended areas.

4. On the issuance of notification dated 15‑10‑1980, the Cantonment Board claimed ownership of all the properties which previously vested in the Bahawalpur Improvement Trust and on its dissolution stood transferred to the Municipal Committee. This claim was disputed by the respondents on the ground that the inclusion of an area under the Cantonment Act, 1924 does not divest the Local Authority or any other person of the ownership of the properties vesting in it. It appears that the matter was discussed at various levels in the Government. The opinion of the Law Department of the Government of Punjab was also obtained which was favourable to the respondents. The Government consequently upheld the stand taken by the respondents and came to the conclusion that the properties in dispute continued to vest in the Municipal Committee as successors of Bahawalpur Improvement Trust notwithstanding the inclusion of the area in Bahawalpur Cantonment.

5. In support of this petition, it was contended by Mr. M.M. Bhatti, Advocate that as the area within which the properties in dispute were situated was included in the limits of Bahawalpur Cantonment Board vide Notification dated 15‑10‑1980 issued by the Federal Government, the title of those properties stood vested in the Cantonment Board. In this respect section 6(5) of the Cantonment Act, 1924 was referred to by the learned counsel to show that Cantonment Board being a Local Authority and was successor of Municipal Committee and as such the ownership of the properties mentioned in Annexures `D' and `E' stood transferred to it.

6. Mr. M. Jaffar Hashmi and Mr. Masood Ashraf Sheikh, Advocate appearing for the respondents have, on the other hand, maintained that notwithstanding the extension of the limits of the Bahawalpur Cantonment, the properties vesting in the Municipal Committee remain to be its properties and no right in these properties can be claimed by the Cantonment Board which can only perform the functions of a Local Authority within the extended area.

8. Having considered the arguments of the learned counsel for the parties, I am of the view that the claim of the Cantonment Board to be the owner of the properties in dispute is wholly unfounded. It is not disputed that these properties originally belonged to the Bahawalpur Improvement Trust which was dissolved by the Provincial Government by issuing a notification under section 103 of the Town Improvement Act, 1922, which provided that the properties vesting in the dissolved Trust shall stand transferred to the Municipal Committees having jurisdiction over the area. Reference to section 103(2) of the Town Improvement Act would show that one of the effect of dissolution of a Trust is that all properties, funds and dues which are vested in or realisable by the Trust and the Chairman respectively vest in and become realisable by the Municipal Committee. It cannot therefore, be disputed and indeed has not been disputed that by virtue of the aforesaid notification the ownership in the properties came to vest in the Municipal Committee.

9. The next question which, therefore, arises is as to the effect of inclusion of the area in which the properties are situated within the limits of Bahawalpur Cantonment by the notification of the Federal Government dated 15‑10‑1980. A bare look at the said notification would show that there is nothing in it to sustain the stand of the Cantonment Board that by virtue of the extension of its limits, all properties belonging to any other person or authorities stood vested in the Cantonment Board. This notification was issued in exercise of power under section 4(3) of the Cantonment Act, 1922 which too does not provide any such consequence. It is, therefore, idle on the part of the Cantonment Board to contend that it had become the owner of the properties situated within the extended area. Neither section 4(3) of the Cantonment Act, 1924 nor notification dated 15‑10‑1980 support this contention. This is unlike section 103 of the Town Improvement Act and similar provision in certain other laws which provided for vesting all properties on the transfer of control of the area.

10. The only effect of inclusion of an area in the Cantonment is provided in section 5 of the Cantonment Act, 1924 which is that the extended area becomes subject to Cantonment Act and all other enactments for the time being in force in the Cantonment. It follows, therefore, that though the Cantonment Board is authorised to exercise administrative control over an area included in its limits, but it cannot claim to be the owner of the properties previously vesting in the Local Authority. Reliance of the learned counsel for the petitioner on section 5 of the Cantonments Act is of no avail.

11. It is interesting to notice that while providing the effect of an area ceasing to be in the cantonment by virtue of a notification issued under section 3, it is specifically mentioned in section 6 that the properties vesting in the Board shall vest in the Local Authority to which the area has been transferred but no corresponding provision has been made in section 5 or anywhere in the Act for vesting ownership of the properties belonging to the Local Council in the Cantonment Board as a result of the inclusion of the area.

12. Section 108 of the Cantonments Act, provides that certain kinds of properties which are either acquired or provided or are being maintained by the Board shall vest and belong to it. That provision has no applicability in the present case inasmuch as the properties mentioned in Annexures `D' & `E' are not of the nature described in the Act itself. However, a reference to section 110 of the Cantonment Act would show that where the Cantonment Board desires to take over any property it has to approach the Federal Government for the purpose of acquisition in accordance with the provisions of Land Acquisition Act, 1894.

13. The position stands further clarified by the Pakistan Cantonment Property Rules, 1957 which have been framed by the Federal Government in the exercise of the powers conferred upon it by clauses (a) and (b) of section D 111 of the Cantonments Act, 1924. Rule 13 specifically provides that when any land or any other immovable property which vests in the Provincial Government or belongs to a Local Body under the administrative control of the Government is required by the Board for a purpose connected with the administration of the Cantonment Board, the Board shall apply to the Central Government for procuring that land or property and the Central Government is competent to pass an order for transfer of the title from the Local Body to the Cantonment Board. In the present case, admittedly no such order has been passed by the Central Government and as such it is idle on the part of the Board to contend that they have become owner of the properties in question merely on account of the inclusion of the area in which they were situated. The case of Pakistan through the Secretary, Ministry of Defence v. Province of Punjab and others (PLD 1975 SC 37), is clearly distinguishable and has no relevance for in the case the question was as to whether the properties which vest in the Cantonment Board under section 108 of the Cantonments Act belong to the Central Government or to the Board. It was held by the Supreme Court that the properties vest in the Board and not the Federal Government. In the present case, the properties in dispute are not of those not mentioned in section 108 of the Act and, therefore, this authority is of no relevance. In Islamic Republic of Pakistan and others v. Syed Najaf Ali Shah (1989 MLD 4412), it was ruled that the mere fact that the land was situated in Cantonment area does not vest its title in the Government in the absence of any proof of acquisition of the land. The conclusion which, therefore, follows from the above discussion is that though the Cantonment Board is fully authorised to administer the area which falls within its jurisdiction and to exercise the powers contained in the Cantonments Act, 1924 and the Rules framed there under in respect of those areas to the exclusion of other Local Bodies yet it cannot claim ownership of the properties falling within its limits also stand transferred to it. In view of what has been stated above, both these petitions stand disposed of in the above terms. There shall be no order as to costs. AA./C‑49 Petition dismissed.