2002 PLP 925 (CLC)

SABIHUDDIN AHMED, J.‑‑‑ The petitioners who claim to be Haris in cultivating possession of agricultural lands in Odero Lal Agricultural Farms appear to be aggrieved by the sale of such lands pursuant to a public auction made by the respondent No.2 (Government of Sindh) through the respondent No. l (Chairman, Sindh Privatisation Committee). According to the petitioners these farms were owned by the respondent No.3 Sindh Seed Corporation which is an independent corporate entity established through Sindh Seed Corporation Act, 1976 (Act 2 of 1976). By a public notice appearing in various newspapers including Daily "Dawn", dated 26‑10‑1997. The respondent No. 1, on behalf of the respondent No.2 advertised the disposal of several properties purporting to belong to the respondent No.2 for sale through the medium of public auction. According to the petitioners they had been in cultivating possession of farm for several years had raised constructions acquired occupancy rights and were entitled to be granteed proprietary rights under policies issued by the Government from time to A time. It is further alleged that the farm in question was not auctioned on the date mentioned in the advertisement. The petitioners were not allowed to participate in the auction and the whole process was manipulated to transfer the lands to political favourites. It was further contended that the respondent No.1 was not duly constituted under any law and in any event had no authority to dispose of lands belonging to the respondent No.3 which was entity separate and distinct from the respondent No.2. The petitioners alleged that their occupancy rights were being gravely impaired by the impugned auction.

2. Pre‑admission notices were issued in the respondents. The respondent No. l filed detailed comments wherein it was inter alia clarified that the occupancy. rights of Haries/tenants were not in any way impaired by the impugned sale and it is made exclusively clear to the auction‑purchasers that the sale was subject to tenancy rights lawfully acquired. The allegations as to non‑transparency were emphatically denied and it was explained that the public auction was duly held at the given date and place strictly in terms notified in the advertisement and the farm in question was transferred to the highest bidder. It was contended that none of the petitioners participated in the auction and their allegation that they are restraining for doing so was emphatically denied. As regards ownership of the farm it was contended that the same did not belong to the respondent No.3, but only to the respondent No.2 and only its management had been handed over to the respondent No.3 for the purpose of seed multiplication. Parawise comments were also filed by the respondent No.3, wherein it was admitted that the petitioners were Haries in respect of the lands. It was stated that the land belonged to the Agricultural Department of the respondent No.2 and was transferred to the respondent No.3 for carrying on seed multiplication in 1998.

3. At the hearing of the petition, we requested Mr. Yousif Leghari learned counsel for the petitioners as to whether the petitioners were satisfied with the categorical undertaking on the part of the respondent No. l to the effect that their tenancy rights were fully protected and they would not be ejected except in accordance with law. Learned counsel, however, contended that despite the above undertaking the petitioners had locus standi to question unauthorized sale of public property through a process causing loss to the public exchequer. Assuming this to be correct we invited learned counsel to address us on the merits and to show us any illegality meriting in the reference of this Court in jurisdiction under Article 199 of the Constitution. Mr. Leghari argued his case on a two fold contentions i.e. (1) That the sale of the land was effected in a non‑transparent and the same was disposed of to favourites at a price much below its actual market value. (2) That in any event the land belonged to the respondent No. 3, the respondents Nos. l and 2 had no jurisdiction to sell the same with respect to the first contention which is founded purely on a statement of fact. We regret to say that learned counsel for the petitioners was not even able to furnish any prima facie evidence as to market value of the land. No affidavit in rejoinder denying the specific contention of the respondent No.l to the effect that the sale in question was made in open auction held at Baradari (formally Polo Ground adjacent to Hotel Pearl Continental, Karachi) and was sold to the highest bidders at different rates for different lots ranging ‑from Rs.71,000 to 1,00,000 per acre as against the reserve price for Rs.20,000 per acre. In any event the allegations of mala fide in the transaction being premised on statement of facts. The petitioners have a more efficacious remedy by way of civil suit and such allegations cannot be investigated under these proceedings.

4. With respect to his second contention Mr. Leghari emphatically argued that the land belonging to respondent No.3 could not be disposed of by the respondents Nos. l and

2. He‑ might be correct so far as proper legal proposition is concerned. The fact nevertheless remains that such assertion has been emphatically denied by the respondent No. 1, who have claimed title to the property vested in the Provincial Government. Since the parawise comments/counter‑affidavit on behalf of the respondent No. 1 appeared to be same of the wake, we expressly asked Mr. Ahmed Ali Memon learned counsel for the aforesaid respondents to definitely said whether title to the property had at any time been transferred to the respondent No.3. Mr. Memon stated upon instructions that no such transfer of title had taken place. Mr. Naseem Qamar learned counsel for the respondent No.1 contended that transfer of property could only take place through a registered instrument and in any event disputed questions relating to title to immovable property could not be resolved in these proceedings. It may be pertinent to mention here that neither petitioners nor the respondent No.3 produced any document of title or even prima facie evidence of ownership.

5. Mr. Yousif Leghari was unable to show any provision of law whereby the petitioners had acquired a right to transfer of such land. On the other hand Mr. Naseem Qamar referred to Division Bench judgment of this Court in Mumtaz Ali and others v. Government of Sindh and C others C.P. D‑968 of 1997, decided by the Sukkur Circuit Bench, wherein it has been held that there is no restriction on the powers of Government to dispose of such lands. In view of the foregoing, we find no merits in this petition and dismiss the same in limine. This will not however, preclude the petitioners from availing other remedies so advised. H.B.T./H‑61/K Petition dismissed.