2017 PLP 1970 (MLD)

SHAHID JAMIL KHAN, J.

This petition is for direction to respondents for transfer of ownership rights of State land to petitioners, over which, they claim to have possession since 1947. This judgment shall also decide connected Writ Petition No. 16967 of 2012 and Crl. Org. No. 917-W of 2012, which are filed in consequence of an interim order dated 06.04.2012 passed in this petition.

2. Facts, as asserted in this petition, are that the petitioners, being displaced persons, after partition, settled in Chak No.31/JB, Tehsil and District Faisalabad. Shops and rooms were constructed by them for living and earning livelihood. On 04.04.1982 an application was moved for grant of proprietary rights, through private treaty, which was followed by a reminder letter dated 04.10.1987. In December 1998; Secretary Punjab Privatization Board requested respondents to assess value of lands, including the land in occupation of petitioners, for sale through private treaty under policy letter No.187-98/ 1410-CSI dated 08.07.1998. Price was assessed, however, respondent No.1 on 18.05.1999 directed for reassessment on the basis of commercial and residential lands separately. As per petition, the petitioners kept pursuing the case and finally on 30.09.2002 District Price Assessment Committee Faisalabad ("DPAC") assessed the price of land for sale through private treaty.

3. Learned counsel for the petitioners contends that respondents did not process the case for transfer of ownership of land, after decision by DPAC, with mala fide intent. Further submits that petitioners have been pursuing this case from pillar to post till filing of this petition. Reliance is also placed on an order dated 11.02.2002 passed in I.C.A. No.108 of 2002 by learned Division Bench of this Court. Further argues that valuable rights have accrued in favour of the petitioners, hence this petition.

4. Learned AAG has opposed this petition by denying the asserted facts and right to purchase the State land through private treaty. Possession of petitioners on the land, at the time of filing this petition, is denied. It is asserted that they were illegal occupants of the land owned by Provincial Government. Also argues that shops in question were constructed on the berm of road, which could not be sold under the policy. He submits that case was never pursued vigilantly by the petitioners as no price of the land was deposited. Adds that the petition suffers from laches. On merits, he argues that a ban was imposed on transfer of State land through private treaties vide Notification dated 08.03.2010 by Board of Revenue Punjab, which was endorsed by succeeding Notification dated 24.06.2010 and vide Notification dated 26.11.2013, policy of transferring State land has been finalized. Further submits that the issue of selling State land through private treaty was taken up by Hon'ble Supreme Court of Pakistan in a suo motu case (Human Rights Cases Nos.7581-P and 9059-P of 2009). It was held that Chief Minister does not have unfettered power to allot State land through private treaties. During proceedings; connected case of Bar Associations was delinked for hearing and decision on merits, which was separately decided by Hon'ble Supreme Court in Province of Punjab through Secretary Revenue and others v. District Bar Association, Khanewal and others (2014 SCMR 1611). Learned AAG has read the judgment by Hon'ble Supreme Court to contend that Notification dated 26.11.2013 was endorsed by reproducing the same in this judgment, wherein policy for the sale of State land is elaborated.

5. Heard, record perused.

6. The fact regarding possession of land in question is disputed; Petitioners claim possession over the land since decades, however, possession at the time of filing this petition is denied by learned AAG. A separate petition (W.P. No. 16967 of 2012) was also filed for registration of FIR against the respondents, claiming that petitioners were dispossessed by respondents after interim stay by this Court vide order dated 06.04.2012. This petition was accompanied by a contempt petition (Crl. Org. No. 917-W of 2012). The order dated 06.04.2012, in the instant petition, is examined, which was passed for maintaining status quo. Petitioners have failed to establish that they were in occupation of State land, in question, under any legal authority. The Apex Court, by a judgment in Fazal ur Rehman and others v. Province of Punjab through District Officer (Revenue) Bhakkar and another (2014 SCMR 1351) has denied proprietary right over State land for having possession over 40 years, in absence of any document to establish any right of possession. Since petitioners could also not establish that they were in possession under any authority of law, therefore, law laid down in this judgment is applicable to this case. In presence of law laid down, ibid, there is no need to enter into factual inquiry regarding possession. Hence, decision on connected writ and contempt petition would be an unnecessary exercise. For these reasons, both connected petitions are being dismissed by separate orders.

7. Learned Counsel for the petitioners could not justify the delay in filing this petition; Price of the land was, assertively, assessed in the year 2002 and the petition is filed in April 2012. No vigilant effort for deposit of the assessed price is appearing from record and delay in filing this petition is also not explained. Objection of learned AAG that this petition suffers from laches carries force. August Court has discussed in detail the principles of laches in Dr. Muhammad Tahir-ul-Qadri v. Federation of Pakistan through Secretary M/o Law, Islamabad and others (PLD 2013 S.C. 413) and this petition does not fall in any of the exceptions.

8. Petitioner's claim of equal treatment on the basis of judgment by learned Division Bench of this Court in the above noted ICA is misplaced. Perusal of the judgment shows that a direction was given to Member (Colonies) Board of Revenue to decide the case pending before him. No right to property was either determined or created by this judgment.

9. Reliance of learned AAG on judgment by Hon'ble Supreme Court in District Bar Association Khanewal's Case (supra) is well placed. Hon'ble Court has specifically held that no person shall have any right or title in the State land until a written order has been passed and allottee/grantee has taken over lawful possession. Relevant part from the judgment is reproduced hereunder:-- "

10. In view of the aforesaid Notification both the organizations have no case for allotment of State land as the grant/allotment of State land is not a right of an individual and, in fact, it is a grace. No person shall have any right or title in the State land until a written order has been passed and allottee/ grantee has lawfully taken over the possession but in the instant case neither the land was allotted to both the organizations nor they lawfully acquired possession thereof. But the learned High Court has erroneously observed in the impugned judgment that the matter was finally decided between the parties and was concluded/ finalized whereas the fact of the matter is that the two Bar Associations were never allotted the land in dispute or delivered its possession. Thus, the arguments of the learned counsel for the respondents Bar Associations and the observations of the learned High Court on the letter dated 9.5.1991 are against the facts as the said letter was written by the Deputy Commissioner, Khanewal by making proposal for such allotment and it cannot be said to be an allotment unless and until it is approved by the competent Authority. Moreover, it is a matter of record that summaries for such approval were declined thrice by the Chief Minister, Punjab." (emphasis supplied) In another unreported judgment dated 18.12.2014 in Civil Appeal No. 214-L of 2014, Hon'ble Supreme Court, while allowing appeal of Government against allotment of State land in violation of law and scheme, observed, "grant of State land is not a bounty".

10. Admittedly, land in question, had never been transferred in the name of petitioners through any written order. Learned counsel for the petitioners has not denied application of the Notifications/Schemes referred by learned AAG and endorsed by Hon'ble Supreme Court in District Bar Association, Khanewal's Case (supra). In view of Article 189 of the Constitution of Islamic Republic of Pakistan, 1973, directions/findings by Hon'ble Supreme Court of Pakistan are binding on all the concerns including this Court.

11. Though the question of possession and existence of vacant land is in controversy, nevertheless, it is observed that petitioners shall be granted a fair chance to participate in the auction, if the land in question has not yet been auctioned. The petitioners may approach Civil Court for appropriate remedies, against alleged dispossession of the State land, if so advised.

12. For the reasons noted above, this petition, as prayed, cannot be allowed. However, with the direction of providing fair chance of participation in auction, this petition stands disposed of. SL/M-366/L Petition dismissed.