2007 PLP 1525 (SCMR)

JAVED IQBAL, J.

This appeal with leave of the Court is directed against the judgment dated 14-3-2002 whereby the writ petition preferred on behalf of appellants has been dismissed.

2. Leave to appeal was granted by means of order, dated 9-5-2002, which is reproduced hereinbelow for the appreciation of legal and factual aspects of the controversy:-- "Petitioner seek leave to appeal against Lahore High Court judgment, dated 14-3-2002 in Writ Petition No.621 of 1971 allowing writ petition filed by Province of Punjab and others, impugning correctness of the order dated 30-12-1971 passed by Commissioner Sargodha Division on a Reference from Governor Punjab as well as from the Administrator Thal Development Authority i.e. Chief Secretary, Punjab. (2) Notice was issued to the respondents as well as' the Advocate-General Punjab vide order, dated 6-5-2002 but none has entered appearance. (3) Petitioners land measuring 213 acres situated in Chak Ne.64-MB, Mouza Ahirpur, District Sargodha (now District Khushab) was acquired by Thal Development Authority for establishment of Mandi Town, Joharabad way back in the year 1951. In terms of the policy decision as contained in letter No.53-C, dated 5th January, 1952 by the Board of Revenue Punjab, Annexure "R/1" alternate land had to be granted to the petitioner in Colony Chaks in the close proximity of the Mandi Town as far as possible but the land given to the petitioner in Chak No.40-A/MB (Rakh Mitha Tiwana) was situated 14 miles away from the Mandi Town. It was the grievance of the petitioners that the alternate land was available for allotment in Chak No.52-MB at a distance of about 3 miles. Accordingly, they made a representation to the Governor Punjab in a public gathering at Joharabad, which was marked to the Commissioner Sargodha to look into the matter. A report was also called for from the Thal Development Authority, who also referred the case to the Commissioner Sargodha Division for necessary action. On his part, Commissioner Sargodha vide order, dated 30-12-1970 accepted the plea taken by the petitioners and directed the allotment of land in Chak Nos.52/MB and 53-MB. It appears that defunct Agricultural Development Corporation had some claim over this land, who, through the Government of Punjab impugned the order passed by the Commissioner in the writ petition, which has been accepted by the High Court on the premises that the sanction of the Provincial Government had not been obtained for the grant of land to the petitioners in lieu of land acquired for public purpose. (4) It is contended that valuable proprietary rights of the petitioners secured and granted under Article 24 of the Constitution would not be abridged and curtailed or terminated to their disadvantage without just and lawful compensation. The grounds, which weighed with the learned Judge in the High Court, on the face of it, appear to be unreasonable and hyper-technical in nature inasmuch as, the Commissioner formed a part of the Government of Punjab, whose responsibility, inter alia, was to compensate the petitioners to provide lands in lieu of the lands compulsorily acquired. In our considered opinion, even if sanction of the Provincial Government was necessary, it could be obtained ex post facto for which petitioners' rights cannot be jeopardized. Essentially, the land was granted to A.D.C. for development but it appears that it was not used for the purpose for which it was granted. Furthermore, A.D.C. was dissolved through Presidential Order No.V of 1972 with effect from 7-2-1972 and its rights and liabilities devolved on the Provincial Government. (5) Contentions raises appear to be of first impression and not without substance. Leave to appeal is accordingly granted to consider the questions raised at the Bar. (6) Learned counsel states at the' Bar that the petitioner are in physical occupation of the land for the last over thirty years. Their possession shall not be disturbed till the decision of this appeal."

3. Syed Najamul Hassan Kazmi, learned Advocate Supreme Court entered appearance on behalf of appellants and urged with vehemence that the legal and factual aspects of the controversy in question have not been appreciated in its true perspective by the learned Single Judge of Lahore High Court, Lahore, which resulted in serious miscarriage of justice. It is next contended that the land in question was duly allotted in favour of the appellants in lieu of the land got acquired by the Government hence no illegality whatsoever has been committed by the Commissioner Sargodha Division by whom the land in question was allotted in favour of the appellants in exchange of the land surrendered by them in Rakh Mitha Tiwana. It is argued that the Government had acquired the land of the appellant pursuant to the conditions enumerated in the policy formulated in this regard whereby the landowners were to be accommodated into the areas located adjacent to Mandi or Town which could not be done but on the contrary to barren chunk of land with bushes and dens situated at a distance of about twenty miles away from the Mandi/Town ignoring the commercial and potential value of the land acquired was allotted. It is pressed time and again that the exchange of land allowed by the Commissioner Sargodha Division was approved by the Board of Revenue and hence no interference could have been drawn' by the learned High Court in exercise of jurisdiction as conferred upon it under. Article 199 of the Constitution of Islamic Republic of Pakistan. It is also contended that the Agriculture Department of Government of Punjab has no concern whatsoever with the land in question and no objection could have been raised qua the exchange of land as directed by the Commissioner Sargodha Division being totally unconcerned. It is urged emphatically that the direction regarding realization of mesne profit is not justified for the simple reason that the appellants have been enjoying usufruct of the land, possession whereof was .handed over to them by the Commissioner Sargodha Division as well as Board of Revenue in lieu of their valuable land which was acquired on the promise that suitable chunk of land would be allotted in the suburbs of Mandi or Town which could not be done hence no undue advantage has been taken by the appellants.

4. Raja Saeed Akram, learned Assistant Advocate-General entered appearance on behalf of Provincial Government duly assisted by Mr. Fayyaz Ahmed, Secretary Agriculture, Government of Punjab and supported the judgment impugned for the reasons enumerated therein with the further submission that the land 'in question could not have been given in exchange to the appellants by, the Commissioner Sargodha Division being not competent as no such powers are conferred upon him to pass such type of order and exchange the State land with that of private land allotted in favour of the appellants. It is also pointed out by the Secretary Agriculture that proprietary rights had already been obtained by the appellants and a closed and past transaction could not have been reopened at the direction of the Governor which was given in "Khuli Kachehri". It is also argued by Raja Saeed Akram, learned Assistant Advocate-General that the order of exchange of land passed by the Commissioner Sargodha Division is without any lawful authority and moreso the land pertained to Agriculture Department could not have been exchanged with private land as has been done by the Commissioner Sargodha Division.

5. We have carefully examined the respective contentions in the light of relevant provisions of law and record of the case and have also minutely perused the judgment impugned. After having gone through the entire record and chequered history of the case we are of the view that undisputedly the appellants had acquired the proprietary rights meaning thereby that the land allocated in their favour was not that of inferior quality or located in far-flung area. Had this been the case, the petition would have been different and proprietary rights would have not been acquired. The appellants went in a deep slumber and woke up after about more than a decade and moved an application to the Governor Punjab in a "Khuli Kachehri" and succeeded in getting the order for re consideration which culminated into the orders passed by the Commissioner Sargodha Division whereby the land commonly known as. "Sultana gardens" was handed over to the appellants in lieu of the land allotted earlier in their favour in Chak No.40-A/M.B. by means of order, dated 30-12-1970 passed by the Commissioner Sargodha Division. A careful scrutiny of record would reveal that the said order had been passed by the learned Commissioner Sargodha Division in a casual and cursory manner without diligent application of mind by ignoring the fact that the State land could not have been exchanged with private land situated in Chak No.40-A/M.B., proprietary rights whereof were obtained by the appellants about thirteen years back and mutations were also attested in their favour and duly registered in the Register Haqdaran Zamin. The closed and past transaction could not have been reopened by the Commissioner Sargodha Division having no locus standi whatsoever which amounts to misuse and abuse of authority never conferred upon him. The Commissioner Sargodha Division has violated the Government instructions contained in letter No.1841-C dated 28-4-1932 which makes it abundant clear that once proprietary rights have been acquired in a grant no application for exchange could be entertained. For the sake of argument if it is conceded that the allocation of land in favour of appellants was not "by way of grant" even then State land pertained to Agriculture Department could not have been transferred with private land, proprietary rights whereof had been conferred upon the appellants. Besides that the Commissioner Sargodha Division has ignored the provisions as enumerated in section 17 of the Colonization of Government Lands Act, 1912 whereby only the State land can be exchanged for State land and therefore, the order passed by the Commissioner Sargodha Division was in utter violation of section 17 of the Colonization of Government Lands Act, 1912. We are not persuaded to agree with Syed Najamul Hassan Kazmi, learned Advocate Supreme. Court on behalf of appellants that order passed by the Commissioner Sargodha Division was upheld by the Member Board of Revenue for the simple reason that on technical ground it was held by the Board of Revenue that order passed by the Commissioner Sargodha Division being executive in nature could not have been interfered. In fact this all was manipulated and appellants succeeded in getting the valuable property worth whereof runs into millions with the facilitation and connivance of the Government functionaries. The order of the Commissioner Sargodha Division should have been declared null and void by the Board of, Revenue which could not be done for the reasons best known to it. We have no hesitation in our mind that order, dated 30-12-1970 passed by the Commissioner Sargodha Division to allow the exchange of land measuring 1345 Kanals, 5 Marlas under the control of Agriculture Department Corporation located in Chak No.52/MB and Chak No.53/MB District Khushab is without lawful authority and is ab initio void.

6. We have observed it with grave concern that Government has been deprived of substantial amount and irreparable loss due to the irresponsible conduct of the Commissioner Sargodha Division who should be penalized for it. There is no denying the fact that possession of land in Chak No.5/MB and Chak No.53/MB was taken over by the appellants pursuant to the order dated 13-12-19.70 of the Commissioner Sargodha Division and hence cannot be held liable for the payment of mesne profit because they had not utilized the land allotted in their favour in Chak No.40-A/MB, Rakh Mitha Tiwana.

7. In sequel to above mentioned discussion the possession of land allocated in favour of appellants situated in Chak No.40-A/MB be handed over the appellants who shall vacate the possession of State land situated in Chak No.52/MB and Chak No.53/MB commonly known as "Sultana gardens", however, they shall not be liable to pay any mesne profit. This exercise must be done within two months. The appeal is disposed in above terms. M H. /A-40/SC Order accordingly.