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Petitioner: MUNICIPAL COMMITTEE, SAHIWAL Through Administrator VS Respondent: MEMBER JUDGMENT
Court Name: Lahore High Court Judge(s): Nasim Sikandar Title:MUNICIPAL COMMITTEE, SAHIWAL Through Administrator vs MEMBER
JUDGMENT
Reported As: 2006 CLC 1330 Result: Order accordingly Judgment JUDGMENT NASIM SIKANDAR, J.---This judgment will dispose of Writ Petitions Nos.4004 of 1995, 7984 of 1997, 4878 of 1998, 4190 of 1995 and 10669 of 1999. 2. The petitioner in Constitutional Petition No.4004 of 1995 is Municipal Committee, Sahiwal. According to the statement of fact as made in the petition all roads, public streets and bazaars within its limits are the property of the Provincial Government and vest in the Municipality for maintenance, management and administration. One of such public street is stated to be known as Jinnah Road situated in a particular Khasra number. This road is described as central artery to which a number of side roads are linked for the purpose of communication. According to the petitioner the land under the said roads was delegated by the Provincial Government and entrusted to the petitioner for the aforesaid purpose of maintenance and management almost a century ago at .The time of establishment of Sahiwal Town, Sahiwal. Further that parallel to the said road on its western side a water course ran with a width of three Karams on one side and of five Karams on the other side in Khasra No.3995 which was different from the Khasra in which Jinnah Road was built. It is the case of the petitioner-Municipality that portion of this Khasra was being utilized as watercourse while remaining area was lying vacant and was encroached upon by a number of squetters who did not pay anything either to the Municipality or the, Provincial Government. Since allegedly their presence created a traffic hazard and was a permanent nuisance for the public at all, the Municipality requested the Deputy Commissioner/ District Collector, Sahiwal for permission to use and manage the vacant portion of watercourse. It is claimed that permission sought for was duly allowed. Accordingly, the Municipality under the bona
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fide belief that District Collector was competent under section 10(3) of Act (V of 1912) to grant the permission proceeded to evict the encroachers thereupon which was possible only after prolonged civil litigation. Having that been done, the petitioner-Municipality decided to construct 60 single and double shops on a part of the said Jinnah Road situated in Khasra No.5072 and vacant portion of the watercourse in Khasra No.3995. The complex of the shops so constructed was named as Jinnah Shopping Centre. It was built at a costs of Rs.15,43,023 and was completed in the year 1982. 3. Thereafter, the Municipality decided to rent out all these shops through open auction which finally took place on 29-5-1982. Every successful bidder was required to sign a regular rent agreement in favour of the petitioner-Municipality before he was delivered the possession of the shop as tenant. At the time of delivery of possession, according to the petitioner-Municipality, lessee of the single shop was required to deposit a security amounting to Rs.10,000 a lessee of double shop a sum of Rs.20,000 to secure the fulfillment of the terms and conditions of the lease. A sum of Rs.7,20,000 is stated to have been collected in that behalf. The lessee according to the Municipality, continued to pay the agreed rent with agreed annual enhancement for a period of about eight years. However, in the year 1990 some of them along with some sublettees of the original lessees (respondents Nos.3 to 56) in the petition, who had in the meanwhile, been introduced without the consent of the Municipality and against the terms and conditions of the lease, approached the Board of Revenue for transfer of propriety rights. On that application, Board of Revenue called for report from the Deputy Commissioner/District Collector, Sahiwal who reported against their prayer by way of letter dated 8-9-1991 after reported that Municipality had constructed these shops without proper authorization though admitted that it had incurred a huge amount on the construction of shops. Besides rejecting the request of the tenants/lessees for allotment the District Collector by way of that order also desired that the petitioner-Municipality should move for ex post facto approval qua the construction raised by it on the land owned by the Provincial Government. 4. In the meanwhile, tenants/lessees (respondents Nos.3 to 56) the petitioners filed a Writ Petition No.3159 of 1991 in this Court seeking a prohibitory order against their eviction. That constitutional petition was dismissed on 7-7-1973 on the ground that the petitioners were admittedly lessees and were estopped to deny the title of its lessor or to make default in payment of rent. On challenge a Division Bench of this Court in Intra-Court Appeal No.105 of 1993, vide judgment, dated 27-11-1993 allowed partial relief to them to the extent that Municipality shall not interfere in their possession or to take any action for eviction against them except in accordance with law. The petitioner in the meantime, approached the Provincial Government as well as the District Collector for purchase of the land under the said shops which was duly recommended by the Deputy Commissioner/District Collector, Sahiwal. However, instead of assailing that order of the District Collector, Sahiwal dated 8-9-1991 the tenants/respondents allegedly filed a time-barred revision petition before respondent No.1 Member (Colonies) Board of Revenue Punjab, Lahore on 1-12-1993. 5. On the entertaining of the said petition, the learned Member again sought recommendation of the Deputy Commissioner, with regard to the sale of land under the shopping plaza. Through his letter dated 27-12-1994 the Deputy Commissioner repeated his recommendation that the land under the said shops be sold in favour of the petitioner-Municipality. However, respondent No.1 Member brushed aside his recommendations by way of the impugned order, dated 9-2-1995 finding the respondents tenants to "have a prior right to purchase the same on payment of current market price plus 10% surcharge". It was further directed that a case for sale by private treaty in favour of the occupants/respondents should be prepared on the executive side and the summary should be submitted to the Chief Minister for approval. The Municipal Committee, Sahiwal has challenged that order through this constitution petition.
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6. The respondents have resisted the petition. In their written statement they have raised number of legal objections against the maintainability of the petition. It is particularly pointed out that the petitioner-Municipality has approached this Court without exhausting alternate remedies and it has not come with clean hands; it is not an aggrieved person inasmuch as the land in question is not owned by it; that the petition is premature; the status of the petitioner itself being that of a trespasser on Government land it cannot approach this Court in quity. On facts it is claimed that the Municipality constructed shops by the funds of the shopkeepers collected as advance on the land which did not belong to it. According to the respondents on gaining knowledge that the land in question was not owned by the Municipality, they applied to the Board of Revenue for purchase of the same on which finally the impugned order was made. The claim of the Municipality that part of the land in question was given to it by the District Collector is also challenged on the ground that under section 10(3) of the said Act District Collector could not transfer any property in favour of any person without the approval of the Provincial Government. It is also alleged that the Municipality collected funds for the construction of shops from the respondents wrongly holding itself out to be an owner of the land in question and therefore, cheated them. It is admitted on their part that they paid rent to the Municipality for some time but discontinued the same on 9-2-1995 after the passing of the impugned order as the land in question was to be sold to them and according to them the Provincial Government had also assessed the price for the transfer of the land. The letter of Deputy Commissioner/District Collector, Sahiwal dated 8-9-1991 whereby he permitted the petitioner-Municipality to manage the part of the land in question is strongly objected to and is assailed by the respondents on the ground that it has not been issued by a competent authority. As to the filing of revision petition before the Member, Board of Revenue the respondents' claim to have done the same in consequence of the order passed by a Division Bench of this Court, dated 27-11-1993 in the said No.5/93. It is also stated that the Member Board of Revenue was not at all bound to accept recommendations of the District Collector. Finally a prayer is made for dismissal of the constitutional petition filed by the Municipality. Also a prayer is made for a direction to respondent No.1 to transfer the land to the respondents. 7. During the pendency of the above Petition No.4004 of 1995 a number of other tenants of the Municipality in other shops located at different places also filed Petitions Nos.10669 of 1995, 4878 of 1995, 4190 of 1995 and 7984 of 1997. In these petitions similar contentions as earlier made by the respondents in reply to Petition No.4004 of 1995 were made though in respect of a different piece of land and a different block of shops constructed by the Municipality of Sahiwal rented out to them. They admitted to be tenants of the Municipality yet in view of the said order of the Member, Board of Revenue dated 9-2-1995 they claim equal treatment and therefore, transfer of shops in their occupation by private treaty. In other words they wished to be treated at par with the respondents in the said Writ Petition No.4004 of 1995 for transfer of proprietary rights in the shops under their occupation. 8. Heard the learned counsel for the parties. 9. Ch. Imdad Ali Khan, Advocate, learned counsel for the petitioner has repeated the aforesaid assertions of fact as earlier made in the petition. He places a lot of stress on a letter, dated 27-5- 1978 written by the Administrator, M.C. Sahiwal to Deputy Commissioner/District Collector, Sahiwal. Through that letter Municipality sought permission of the Collector to use open spaces along with the Municipal roads. In reply Deputy Commissioner, Sahiwal on 29-9-1978 expressed his no objection to "the administering by you the portion of the road side land site in Sahiwal Town comprising of Khasra No.3995. A similar no objection to administer road sides by Municipality was expressed by D.C., Sahiwal and conveyed to them on 27-11-1978. Also refers to the resolution passed by the Municipality on 12-11-1981 for the construction of the aforesaid shops which were finally completed at a cost of Rs.15,43,023. The terms of auction and those of agreement/rent deed in
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favour of the Municipality by the original tenant lessees are also referred to. It is claimed that respondents Nos.3 to 56 either themselves executed the rent notes or obtained possession from those who had entered into a contract of tenancy with the Municipality. Further that all tenants kept on paying rent along with settled perennial increase for eight years long. Learned counsel also admits to have received of the aforesaid advances from the tenants but states that these were received after constructions of shops and only as a security for fulfillment of the terms of lease. Learned counsel further emphasis the fact that the present respondents in Constitutional Petition No.3152 of 1991 admit that lease hold rights of the shops were auctioned. In para. 7 of that petition they also admitted that they were otherwise in occupation of the shops as tenants of the Municipality. Reference is-also made to written reply/comments filed by the respondent Member (Colonies), Board of Revenue in the aforesaid petition. A particular reference to para.7 of the reply is made wherein it is stated that the petitioner (now respondents Nos.3 to 56) had no legal right to occupy the land. In the reply it was further stated that since Municipality was a ,public institution and was responsible for providing services to citizens the District Collector, Sahiwal had proposed ex post facto sanction to regularize its possession of the suit-land. Further stated in the reply that the Municipality had spent a considerable amount on the construction of shops and therefore, proprietary rights in these shops could not be granted to the petitioner tenants (now respondents). 10. Learned counsel for the Municipality has also taken me to various portions of the order passed by a learned Single Bench of this Court on 7-7-1993 in the said Constitution Petition No.3152 of 1991. In that order it was inter alia observed the petitioners (now respondents Nos.3 to 56 wished to be exempted from payment of rent for an indefinite period; that they were in possession of the shops as tenants and did not enjoy any independent right as owners. The order recorded by the Division Bench of this Court in Intra-Court Appeal filed by the respondents is also referred with emphasis that practically no relief was allowed to the present respondents Nos.3 to 56 and only the possession as tenants was protected. Also he has taken me to a number of reports made by the D.C. District Collector, Sahiwal in connection with the aforesaid land. A specific mention is also made on the written arguments filed by the Municipality before the learned Member, Board of Revenue wherein all the legal and factual submissions were repeated before the impugned order was made on 9-2-1995. It is claimed that none of their objections and counter-claim was even mentioned in the impugned order made on 9-2-1995. 11. According to the learned counsel, the respondents once having admitted themselves to be tenants under the Municipality they could not resile nor could they be preferred against the landlord Municipality for transfer of the land under the shops;. Proposal of transfer of land in' favour of the tenants again did not absolve them of their liability to pay rent nor in any manner it improved their status qua the petitioner-Municipality. The petitioner-Municipality he claims admittedly being the owner of the structure is certainly a landlord and an aggrieved person to challenge the impugned order. In support of maintainability of the petitioner, learned counsel relies upon Re: Calicon (Pvt.) Ltd. v. Federal Government of Pakistan and others 1996 MLD 705; Re: Mst. Iqbal Siddiqui v. Assistant Settlement Commissioner (Urban) and others PLD 1984 Lah. 291; Re: Anjuman-e-Ahmadiya v. The Deputy Commissioner and others PLD 1966 SC 639 and Re: Messrs Maniar Industries (Pvt.) Ltd. v. Sindh Industrial Trading Estate Ltd. And another 1992 CLC 2329. Also refers to section 13 of the Punjab Highway Ordinance, 1959 wherein the procedure to close highways or a portion of the highways has been detailed. He claims that the impugned order will directly result in closing of. a highway which was not permitted by law. The discretion vested in Board of Revenue while hearing revisions against the impugned orders of the Revenue Authorities is claimed to have not been exercised in accordance with the principle settled by the Honourable Supreme Court of Pakistan in re: Federation of Pakistan and others v. Ch. Muhammad Aslam and others 1986 SCMR 916; Re: The Montgomery Flour and General Mills Ltd. v. The Director, Food
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Purchase West Pakistan and others PLD 1957 (W.P.) Lah. 914. Further states that the alleged exercise of revisional jurisdiction by way of the impugned order against the order of the Collector was wholly unjustified in view of the availability of right of appeal against that order. To support the submission reference is made to ratio settled by the Honourable Supreme Court in re: Municipal Committee, Bahawalpur v. Sh. Aziz Elahi PLD 1970 SC 506; re: Syed Azmat Ali v. The Chief Settlement and Rehabilitation Commissioner PLD 1964 SC 260. The prayer for interference in constitutional jurisdiction with the impugned order is also supported by placing reliance upon re: Government of Pakistan through Secretary, Ministry of Religious Affairs Islamabad and 3 others v. Zafar Igbal and 3 others 1992 CLC 219; Re: Riaz Hussain and others v. Board of Revenue and others 1991 SCMR 2307 and re: Islamia University Bahawalpur v. Dr. Muhammad Khalid Malik PLD 1993 Lah. 141. Lastly it is submitted that the alleged revision before the Member Board of Revenue being hopelessly time- barred ought to have been summarily dismissed instead of making an order which could be quoted as an example for abuse of discretion vested in an executive authority. Also relies upon re: Allah Ditta v. Hassan Din 1994 CLC 1291 and re,: Ahsan Ali v. District Judge PLD 1969 SC 167 to contend that even in absence of an objection a time-barred petition should not have been entertained. Besides giving the background in which the impugned order was passed learned counsel places reliance upon re: Muhammad Farooq Imam v. Claim Commissioner and others PLD 1964 SC 585 to argue that the impugned order needs to be set aside on the sole ground that it does not portray a serious application of mind. Reliance is also placed on re: Ardeshir Jivangi Mistri and others v. Aimai Kuraiji and others AIR 1929 Bombay 94 wherein while interpreting section 37 of the Bombay Land Revenue Code, it was found that Government had no inherent power to block or to divert existing public highways and if, they wished to do the same, a legislation in that regard was necessary. 12.r. Qadir Ahmad Siddique, Advocate, learned counsel for the respondents in Constitutional Petition No.4004 of 1995 on the other hand objects to the maintainability of the petition on the ground that the Municipality is not an aggrieved person within the contemplation of Article 199 of the Constitution. In the view of the learned counsel being a mere trespasser and having constructed shops on the land belonging to the Government it could not make a prayer for the writ of the kind to perpetuate the same inasmuch as the Member, Board of Revenue returned an authoritative finding that the District Collector was not authorized to transfer the property in dispute. He claims that a writ of the kind is not a writ of course and cannot be claimed as a matter of right. Also that to invoke the jurisdiction of this Court for issuance of mandamus the petitioner must be possessed with a legal right. Also a corresponding legal duty imposed upon the public officer to merit issuance of a direction in writ of mandamus. In support of these submissions reliance is placed upon Allah Bakhsh v. Hassan Muhammad and others PLD 1967 Lah. 346; Sh. Barkat Ali v. Additional Settlement Commissioner and 2 others 1972 SCMR 293. As to the application of rule of estoppel against the tenants/respondents he claims that it does not bar the defence of ouster by a person with paramount title or an attornment to him as landlord. The contention is placed upon the findings recorded by a Single Bench of this Court in Re: Ram Rakha -Mal v. Munna Lal Maidhan AIR 1931 Lah. 243. Also places reliance upon interpretation of the principle as made by this Court in re: Mansur Raza and 4 others v. Mst. Syrria Begum PLD 1966 (W.F.) Lah. 1059 and re: Sarbland and 19 others v. Ghulam Fatima and 6 others 1996 MLD 948. Further refers to a Single Bench order of Peshawar High Court reported as Muhammad Aslam and 14 others v. Senior Superintendent of Police 1998 MLD 1737 to contend that principle of estoppel was relevant to the point of time when the tenancy was created. According to the learned counsel after the respondents came to know that the Municipality was not owner of the land under the shops in their occupation they could justifiably deny its entitlement to receive rent. Also that by approaching Government they attorned to a person with paramount title and prayed for the transfer of the land in their favour which was accordingly proposed by way of the impugned order. In these special circumstances, according to
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the learned counsel, the ratio settled in the cases relied upon by him applied on all fours to the facts in hand. Further that the respondents could not be shut up only for the reason that they had been paying rent to the Municipality for some time or that in the aforesaid constitutional petition they had admitted their position as tenants. In the view of the learned counsel the petitioner- Municipality having raised construction with the funds of the respondents on a site which did not belong to it had been guilty of fraud and therefore, was not entitled to the discretionary relief by this Court which is necessarily a Court of equity. 13. The prayer made in Writ Petition No.4004 of 1995 for a direction to transfer of land in favour of petitioner-Municipality is also opposed on the ground that a trespasser cannot be obliged even though it acts in the garb of a public institution. According to him doing so would amount to pay premium to a defaulter making capital out of his own crime. It is also claimed that the memorandum relied upon by the petitioner-Municipality empowering the D.C. To sell land against the provisions of section 10 was a nullity and could not be given effect to. It is repeated that the petition is premature as the impugned order only directed for the preparation of a summary for the approval of the Chief Minister. In absence of a decisive step in that direction which had not so far been taken the petitioner could not approach this Court to claim a right which never existed in it and to oppose creation of a right in the respondents which was yet to come into being. 14. Learned counsel for the petitioners in Constitutional 'Petitions No.10669 of 1995, 4878 of 1995, 4190 of 1995, 7984-M of 1997 have adopted the aforesaid arguments advanced at the bar by Mr. Qadir Ahmad Siddique, Advocate. 15. Taking up legal objections against the maintainability of the petition first I will readily agree with the learned counsel for the petitioner that in the given circumstances, the petitioner-Municipality was not supposed to keep its figure crossed and wait till summary for transfer of proprietary rights was made and approved by the Chief A Minister. The respondents as tenants having already thrown a serious challenge to its entitlement to receive rent or to hold itself out as a landlord was per se sufficient to put the Municipality to an action. Particularly in view of the fact that before filing of the aforesaid writ petition and then the I.C.A. In this Court the respondents had stopped paying rent to the petitioner-Municipality. In re: Mian Fazal Din v. Lahore Improvement Trust, Lahore and others PLD 1969 SC 223 the Honourable Supreme Court of Pakistan found that to maintain a proceedings in writ jurisdiction existence of a right in the strict juristic sense was not required. Also that it was sufficient if an applicant could disclose that he had a personal interest in the performance of a legal duty which had not been performed or performed in a manner not permitted by law or could result in the loss of some personal benefit or advantage or the curtailment of privilege of liberty or franchise. In the other case relied upon at the bar re: Messrs Abdullah and Company v. The Province of Sindh and others 1992 MLD 293; a Full Bench of the Karachi High Court was of the view that the petitioner approaching on constitutional side was only to establish that he had sufficient interest in the award of the contract in question to fall within the meaning of an "aggrieved person". In re: Calicon (Pvt.) Ltd. 1996 MLD 705 a Division Bench of this Court followed the principle as settled by the apex Court in re: Mian Fazal Din v. Lahore Improvement Trust Lahore PLD 1969 SC 223. In that case it was held that this Court would not hesitate to strike down actions by an Executive Authority which were irrational, unreasonable and discriminatory. The improper exercise of discretionary power was held to give rise to an action for remedy which in the case of the kind could effectively be remedied by invocation of constitutional jurisdiction of this Court. The impugned order as we will see in the following part of this order is not a routine order passed by the Board of Revenue in the usual discharge of its function as the highest authority on the Revenue side. The exercise of revisional jurisdiction on the basis of the report appears clearly out of context. It is also observed that the learned counsel for the respondents denies to have filed a revision petition before the Board of Revenue. It is alleged that the impugned
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order was made on their application for transfer of proprietary rights in. The disputed land. -He may have…
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