P L D 2007 Supreme Court 633 (PLP)

MUHAMMAD NAWAZ ABBASI, J.

This petition under Article 185(3) of the Constitution has been directed against the judgment dated 10-2-2005 whereby a learned Division Bench of High Court of Sindh, at Karachi, dismissed the Constitutional petition .filed by the petitioner against the order dated 28-8-1989 passed by the. Tribunal constituted under Para. 6-A of Martial Law Regulation 57 (MLR 57) of 1983 as amended.

2. The facts in the background, giving rise to this petition, are that Karachi Development. Authority now succeeded by City District Government Karachi launched a Scheme under Article 37 of Karachi Development Authority Order (President's Order No.5 of 1957) to be called "KDA Scheme No.41 Surjani Town" on an area measuring 6600 acres of Deh Surjani Tappo Mangopir, District West Karachi, out of which an area of 240.13 acres of land being owned by Evacuee Trust Property Board, was included in the Schedule to MLR 57 of 1983. In consequence to the negotiation between the concerned authorities of Evacuee Trust Property Board and Government of Sindh, it was settled that the evacuee trust land could be given to KDA for the purpose of scheme in question on payment of compensation/costs and consequently, KDA having deposited an amount of Rs.25 % of the assessed cost, obtained possession of land in question. However, pending final payment of the cost of land and transfer of the ownership rights in favour of KDA by virtue of Ordinance, VI of 1989 promulgated on 27-5-1989 para. 6-A was inserted in MLR 57 as under:-- "(1) All contracts made in respect of properties .covered by Regulation 57 were to be null and .void unless confirmed by a tribunal to be appointed under the Amending Ordinance. (2) The application for confirmation of such transaction, contract or agreement entered in to may be made to the tribunal within 30 days. (3) The Tribunal shall hold an inquiry into the application within three months of its receipt after notice to the applicant and the Evacuee Trust Property Board and pass such orders as it may deem fit. (4) The Tribunal was required to annul airy contract which in its opinion was not in accordance with paragraph 6 of M.L. Regulation 57."

3. In view of the above development taken place, petitioner filed an application (case No.31 of 1989) for confirmation of the proposed sale of land by negotiation with Evacuee Trust Property Board before the tribunal constituted under para.6-A ibid wherein it was pleaded that the land measuring 240.13 acres was part of the scheme No.41 of KDA and in view of the settlement between evacuee Trust Property Board and Provincial Government, the land in dispute stood transferred in the name of Provincial Government subject to the payment of compensation and except the completion of legal formalities, the transaction of sale in all respects, was finalized. The Tribunal, vide order dated 28-9-1989; rejected this application in the, following manner:-- "In view of the above discussion we do not confirm the transaction in favour of the applicants. The present three applications therefore, are rejected. However, considering the fact that the applicants: in these three cases have paid considerable amount to the Board under the impression that the Board was competent to transfer the said properties to them, we order the refund of the amount paid by them to the Board. It was however, pointed out by the learned counsel in these three applications that the applicants have already spent their life saving (sic) on raising their constructions, we can express all sympathies to them and observe that they may seek their remedies against the persons concerned in proper forum." The order of the Tribunal was challenged by the petitioner before the High Court in a constitutional petition and a learned Division Bench of the High Court dismissed the writ petition vide impugned judgment with the observation that the order challenged therein was not suffering from airy legal or jurisdictional defect calling for interference of the High Court and parties being public functionaries, were at liberty to resolve their dispute in the public interest.

4. Learned counsel for the petitioner has contended firstly that para. 6-A of MLR 57 of 1983 being violative of fundamental rights, was not a valid law and was also repugnant to the Constitution as well as to the Injunctions of Islam; secondly, the land was being utilized for public welfare and the High Court without considering the principle of law regarding promissory estoppel and legitimate expectancy, dismissed the writ petition in slipshod manner and thirdly, the Tribunal was mis directed. in law in dismissing the application for confirmation of the contract of sale on the ground that instead of disposing of the land through public auction, the same was transferred in the name of Provincial Government by way of negotiations in departure to the Scheme of law. Learned counsel submitted that the proposal of transfer of the land in the name of Provincial Government was finalized in .consequence to the negotiations between the Joint Secretary of Religious Affair sand Member BOR, Sindh, in the meeting held on 15-8-1985 in which representatives of Evacuee Trust Property Board and KDA were also present wherein it was decided that on payment of 25 % of the assessed compensation of the land on the tentative rate, the possession of the land would be handed over to the KDA and this decision was given effect accordingly. The learned counsel submitted that land was to be used for a housing scheme and no third party interest was involved to have any objection to the transfer of land in the name of Provincial Government, therefore, the Tribunal was misled in law and facts in rejecting the application for confirmation of the transaction of sale in favour of Provincial Government. Learned counsel added that in the similar circumstances in the case titled Lavin Traders v. Deputy Administrator, Evacuee Trust (Case No.34 of 1989) under MLR No.57 of 1983 (1993 SCMR 1707), involving the same question of law and facts, this court held that open auction is a public sale and the main purpose of public sale is the maximum financial return for the owner of property and that if the property is sold in manner other than the recognized method of public auction it may be against the policy of law but may not be necessarily against the public interest. In the light thereof, the learned counsel argued that sale of land in favour of Provincial Government through negotiations may not be against the public interest and. mere departure of policy of law for disposal of land through public auction may not as such undo the sale which was otherwise quite in accordance with law. We are afraid, in the judgment referred above, no doubt dispute related to the property subject-matter of Schedule to MLR 57 of 1983 but this Court has not held in that judgment, that the sale of public property. by the public functionaries through negotiations or by any other method, other than public auction even if is not in consonance with the policy of law, may not be necessarily against the, public interest, rather the order of Tribunal in above case was set aside with the consent of parties and case was remanded to the High Court for determination of the correct market value of property. We may point out that in the judgment in question, no law having binding force in terms of Article 189 of the Constitution was laid down to be made applicable to the present case.

5. We having heard the learned counsel for the parties have not been able to find out any substance in this petition. The sale of public property by way of restricted auction, may not be prohibited under the law but at the same time, the sale of public property through negotiation or restricted auction without proper publicizing, may not be considered legal. Be that as it may; in consequence to the insertion of para. 6-A in MLR 57 of 1983, the proposal of transfer of property by Evacuee Trust Property Board in the name of Provincial Government for a Housing Scheme of KDA before attained maturity, became null and void. This is to be pointed out that Martial Law Regulation No.57 having been given constitutional protection under Article 270-A of the Constitution would be deemed to be a valid-law for all intents and purposes and in view of the settled principle that there can be no estopple against the law, the proposal of sale stood annulled under para. 6-A of the said MLR In consequence thereto, the petitioner could not invoke the constitutional jurisdiction of the High Court for enforcement of contractual obligation inter se parties in respect of .the proposed transaction of the sale of land.

6. In the light of foregoing reasons, we do not find any substance in this petition and same is accordingly dismissed. Leave is refused. M.H./K-6/S Petition dismissed.