1996 PLP 43 (MLD)

IHSAN‑UL‑HAQ CHAUDHRY, J: ‑‑The appellant filed Constitutional petition bearing W.P. No.234 of 1987 with the following prayers: ‑‑‑ (i) That the declaration be granted to the effect that the interpretation of the Law Department and the actions and orders of Municipal Committee, Bahawalpur, under the said interpretation of the Law Department, Government of the Punjab, are without jurisdiction, without any legal effect. Hence nullity in the eyes of law. (ii) That the Cantonment Board is successor‑in‑interest of the Municipal Committee, Bahawalpur. The properties mentioned in Annexures `D' & `E' stood transferred vide notification of 1968 and the Municipal Committee had nothing to do with the properties. Perpetual injunction be granted restraining the respondents from interfering in the possession of the petitioner over the properties in dispute. (iii) Any other relief, which this Honourable Court may deem fit, may also kindly be granted in favour of the petitioner and against the respondents. The respondents contested the same. The learned Single Judge dismissed the writ petition vide judgment announced on 13‑12‑1994.

2. The brief facts leading to the present appeal are that Bahawalpur Improvement Trust was owner of the properties, now the bone of contention between the parties. The Trust was dissolved by the Government vide notification dated 1‑12‑1969 and it was simultaneously directed that Municipal Committee shall take over all the assets and liabilities of the Trust and shall carry out its functions under section 25 of the Municipal Administration Order, 1960. The Federal Government, earlier to this, in exercise of its powers under section 3(1) and (2) of the Cantonments Act, 1924, constituted the appellant and specified area comprising of Dera Izat and Hansra villages, Tehsil and District Bahawalpur and by a subsequent notification dated 15‑10‑1980 additional areas were included within the limits of Bihawalpur Cantonment and simultaneously some areas were excluded from its limits. The present dispute pertains to this additional area. The appellant claimed the ownership of all the properties which were originally owned by the Bahawalpur Improvement Trust and on its dissolution stood transferred to the Municipal Committee. This claim was not accepted by respondent No.2, who referred the matter for the opinion of the Law Department of Government of Punjab, which upheld the view of respondent No.2 that the properties in dispute continued to vest in the Municipal Committee. Thereafter, the appellant filed Writ Petition No.234 of 1987, while another petition bearing Writ Petition No.1296 of 1992 was filed by Bahawalpur Government Gazetted Officers Cooperative Housing Society Ltd., Bahawalpur and another against the appellant. Both these writ petitions were heard together arid decided against the appellant vide judgment dated 13‑12‑1994. Now, this appeal, which came up for limine hearing on 8‑3‑1995 when pre‑admission notice was issued to the respondents, who were served and have appeared through their learned Advocates, while respondent No.4 was impleaded subsequently on the oral request of the learned counsel for the appellant. The appeal has been treated as notice case with the concurrence of the parties.

3. The learned counsel for the appellant argued that initially when the dispute arose, it was decided to constitute a Committee which met with the Secretary, Basic Democracies in Chair. The meeting was held on 12‑9‑1970. The minutes of the meeting have been placed on record as Annexure `C'. It is added that according to the decision, points of dispute, if any, were to be referred to the Commissioner, Bahawalpur, for adjudication and after the amount of compensation was determined, the matter was to be referred to the Governor for his orders. It is maintained that points of difference were referred to the Commissioner, who passed the orders dated 11‑6‑1973 and 18‑3‑1974, placed on file of writ petition as Annexures `H' and `J'. It is argued that according to section 6(5) of the Punjab Local Government Ordinance, 1979, when any local area forming part of a local council ceases to be part of that local council, then the Government may transfer. the portion of funds, property and liabilities to the successor `local authority'. The relevant provision reads as under: ‑‑‑ "(5) Government may, by notification, extend, curtail or otherwise alter the limits of a local council or declare that any local council shall cease to be a local council with the following consequences and such other consequences as may be enumerated in the declaration‑‑‑ (a) in cases where the whole local area comprising a local council ceases to be a local council‑‑ (i) if the control of the local area is placed under any other local authority, the balance of the local council fund and other property shall vest in such local authority and the liabilities of the local council shall, stand transferred to such local authority; and (ii) if the control of the local area is not placed under any local authority, the balance of the local council fund and other property vesting in the local council shall vest in Government and the liabilities of the local council shall stand transferred to the Government; (b) in cases where any local area forming part of a local council ceases to be a part of that local council‑‑‑ (i) if the control of that part of the local area is placed under some other local authority, such portion of the local council fund and other property vesting in the local council and such portion of the liabilities of the local council, as the Government may, by general or special order, direct shall be transferred to that other local authority; and (ii) if the control of that part of a local area is not placed under some other local authority, such portion of the local council fund, and other property vesting in the local council shall vest in Government and such portion of the liabilities of the local council shall be transferred to the Government, as the Government may, by general or special order, direct." It is admitted by the learned counsel for the respondents as well that the appellant is a `local authority'. The emphasis of the learned counsel for the appellant was on clause (b)(i). It is clear there from that the Government may, by general or special order, direct that such portion of funds, properties and liabilities vesting in the erstwhile local council may be transferred to the other local authority. The admitted position is that the Provincial Government has not issued any such notification. It is for the appellant to approach the Government in this behalf. The Provincial Government is not under any such legal obligation, which can be enforced through Constitutional petition.

4. It is not clear what was the real intention of the learned counsel while he referred to this provision. If the intention was to show that the efforts to settle this issue amicably were well within the powers and it has statutory backing, then it is a different‑ matter, otherwise reference to this provision is beside the controversy.

5. Mr. Masood Ashraf Sheikh, the learned counsel for respondent No.2 argued that respondent No.3 legally can transfer property vesting in it in accordance with Rule 10 of the Punjab Local Councils (Property) Rules, 1981, only through public auction, and no other manner. In this behalf, it is added that respondent No.2 can also enter into contract in the manner prescribed under section 39 of the Ordinance, 1979, read with Punjab Local Councils (Contract) Rules, 1981, and any contract in violation of these‑two sets of rules would be illegal. Therefore, the direct negotiations for transfer of the property are of no legal effect. The learned counsel for the respondent, in this behalf, has referred to a judgment passed .by this Court in I.C.A. No.12 of 1994/BWP on 29‑3‑1994, wherein it was held that these limitations are reasonable statutory checks and necessary to keep the affairs of local council transparent.

6. Now coming to the Cantonments Act, 1924. The Board can acquire property as provided by Rule 13 of the Pakistan Cantonment Property Rules, 1957, which reads as under: ‑‑‑ "

13. Transfer of immovable property belonging to the Provincial Government and Local Bodies to the Board: ‑‑When any land or other immovable property, which vests in the Provincial Government or belongs to a Local Body under the administrative control of the Government, is required by the Board for a purpose connected with the administration of the Cantonment, the Board shall apply to Central Government for procuring the said land or property. The expenses and other charges incurred in connection with the procurement of such land or property shall be payable by the Executive Officer under the orders of the Board out of the Cantonment Fund. Nothing in this rule‑ shall debar the Board from purchasing land or property from a local authority by agreement." It is crystal clear from the above rule that the property would not automatically vest in the Cantonment Board but it shall have to apply to the Federal Government for procuring the said land or properties. The learned Single Judge has dealt with the provisions of law and precedents and correctly concluded that the property did not vest in the Board. This is unfortunate that the appellant has neither followed the Rules, 1957, nor it is prepared to follow the mode prescribed under section 6 of the Punjab Local Government Ordinance, 1979. The learned counsel for the appellant, in the end, when confronted with this legal provision, proceeded to refer to section.108 of the Cantonments Act, 1924, to maintain that the properties of the type mentioned in clauses (a) to (g) at least would automatically vest in the Board. It is not possible to agree with this argument in view of the‑clear text of the section. The same reads as follows: ‑‑ "

108. Proper Subject to any special reservation made by the Central Government, all property of the nature‑ hereinafter in this section specified which has been acquired or provided or is maintained by a Board shall vest in and belong to that Board, and shall be under its direction, management and control, that is to say, ‑‑ (a) all markets,, slaughter‑houses, manure and night‑soil depots, and? buildings of every description; (b) all water works for the supply, storage or distribution of water for public purposes and all bridges, buildings, engines, materials and things connected therewith or appertaining thereto; (c) all sewers, drains, culverts and watercourses, and all works, materials and things appertaining thereto; (d) all dust, dirt, dung, ashes, refuse, animal matter, filth and rubbish of every kind, and dead bodies of animals collected by the Board from the streets, houses, privies, sewers, cess‑pools or elsewhere, or deposited in places appointed by the Board for such purpose; (e) all lamps and lamp‑posts and apparatus connected therewith or? appertaining thereto; (f) all land or other property transferred to the Board by the Central or a Provincial Government, or by gift, purchase, or otherwise for local public purposes; and . (g) all streets and the pavements, stones and other materials thereof, and also all trees, erections, materials, implements, and things existing on or appertaining to streets." This brings us again to the admitted position that the property in dispute has not been acquired. Therefore, from whatever angle we look at the matter, the appellant is not entitled to any relief. Its remedy is either to approach the f Federal Government under Rules of 19_57 for acquisition of the property or the Provincial Government for transfer of the properties under section 6 of Ordinance, 1979.

7. This is not all. Writ Petition No.1296 of 1992 was filed against the appellant, wherein it was prayed that an appropriate writ declaring the action of the appellant in interfering with the use of the land earmarked for the grave?yard (Waqf property) other than the burial purposes and the appellant may further be restrained from raising any construction, whatsoever, including sewerage disposal work etc. Such other direction may also be issued against the appellant, which is just and beneficial for the petitioner and the inhabitants of the locality. The appellant contested this writ petition and claimed every right 1 to deal the land and properties as the same vested in it. Therefore, this writ petition was heard alongwith the writ petition filed by the appellant and decided by the consolidated judgment but the appellant has not cared to file appeal against the decision in that writ petition nor impleaded the writ petitioner as a respondent in this appeal. This finding has not been challenged in appeal, therefore, attained finality. It cannot be set aside even by implication in this appeal, which to the extent of those properties has become infructuous. The upshot of the above discussions is that the appeal is without any merit. The same is dismissed. AA./C‑59/L???????????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.