2019 PLP 610 (YLR)

AMIN-UD-DIN KHAN, J.

Through this writ petition following prayer has been made:-- "It is therefore, most respectfully prayed that intant writ petition may please be accepted and impugned order dated 26.09.2018 passed by respondent No. 5 to the extent of remarks/observations mentioned in para No. 8 of the writ petition may please be declared illegal, unlawful, void ab-initio and the same may please be expunged/set aside. It is further prayed that pending adjudication of above titled writ petition, the operation of the impugned order dated 26.09.2018 may please be suspended/stayed in the meanwhile."

2. I have heard preliminary arguments advanced by learned counsel for the petitioners.

3. Argues that there was an order in favour of the petitioners passed by the Member (Judicial-I)/ Settlement Commissioner, Board of Revenue, Punjab in Settlement Case No. 247 of 2004 titled "Hafiz Muhammad Saleem and others v. State/Abdul Hakeem" dated 24.10.2005. Respondent No. 2 filed an application under section 12(2) of the C.P.C. which was though dismissed vide impugned order dated 26.09.2018 but it was held in the following terms which is not acceptable to the petitioners:-- "Suffice it to observe that order dated 24.10.2005 is non-existent order and has no value in the eyes of law." Learned counsel relies upon judgments of the august Supreme Court of Pakistan reported as "Muhammad Ramzan and others v. Member (Rev.)/CSS and others" (1997 SCMR 1635) and "Member, Board of Revenue, Punjab, Lahore v. Rafaqat Ali" (1998 SCMR 2596).

4. I have gone through the impugned order as well as order dated 24.10.2005. Paragraph No. 4 of the order is relevant which is reproduced:-- "I have seen the evidence produced by Hafiz Muhammad Saleem, etc. petitioners for securing this property under RP Scheme of Board of Revenue. They are not old occupants of this land. Electricity Bills and the other relevant record show that the petitioners occupied this land at some later stage. Their existence prior to 1980 has not been established on the file. They are illegal encroachers and do not fulfill the requirements for allotment under Scheme No. 8 or Scheme No. 9 of the Board of Revenue. The relevant record shows their names during 1994 and 2000. They, therefore, does not fulfill the qualification for allotment of this land under any Settlement Scheme. However, they are at liberty to purchase this property at market price to be determined by the Department in accordance with law." There is no cavil to the case law cited by learned counsel for the petitioners. No rights so far have been transferred in favour of the petitioners by the Settlement Department. Now under the policy as well as the judgments of the Apex Court the property cannot be transferred except through open auction in the light of judgment of the august Supreme Court of Pakistan reported as "American International School System v. Mian Muhammad Ramzan and others" (2015 SCMR 1449) as well as Para No. 7 of the judgment dated 02.01.2015 passed by the august Supreme Court of Pakistan in C.P.No.709-L of 2009 titled "Member (Judicial-V), Board of Revenue/Chief Settlement Commissioner, Punjab and 2 others v. Sagheer Muhammad Khan and others" which is also reproduced verbatim:-- "

7. Considering the above, we are clear firstly that the conclusion arrived at by the learned Single Bench in para 9 of the impugned judgment, as reproduced above is incorrect and the reliance on the case of Muhammad Hussain (supra) is also misplaced. Secondly, it is evident that as of date, the respondents can have no claim on the property in question. According to the current law and arrangements put in place by the Province subsequent to the Repeal Act the property will have to be disposed of through open public auction so that the assets vested in the Province and ultimately in the people of the Province are duly protected. This shall not prevent the Province from proceeding, against the respondents or others both for recovery

5. In this view of the matter, no case for interference is made out as the rights claimed through this writ petition are not in existence and I am clear in my mind that by filing a writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 no rights can be created in favour of the petitioners, therefore, writ is not competent. Even otherwise, I am of the view that a person while invoking constitutional jurisdiction of this Court is required to show that the forum below has exercised the jurisdiction not vested in it by law or there is some jurisdictional defect. Learned counsel for the petitioners could not show any such defect in the order impugned through this constitutional petition nor I have seen any defect therein, therefore, indulgence of this Court while exercising powers under Article 199 of the Constitution of Islamic Republic of Pakistan 1973 is not warranted through the constitutional petition in hand. In this view of the matter, when the order has been passed in accordance with law, same cannot be declared to be without jurisdiction, hence, this writ petition having no force stands dismissed in limine. MH/M-173/L Petition dismissed.