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Petitioner: Liaqat Ali Khan and 10 others VS Respondent: Chief Settlement Commissioner, Member JUDGMENT
Court Name: Lahore High Court Judge(s): Ch. Muhammad Iqbal Title:Liaqat Ali Khan and 10 others vs Chief Settlement Commissioner, Member
JUDGMENT
Reported As: 2021 YLR 349 Result: Petition dismissed Judgment JUDGMENT CH. MUHAMMAD IQBAL, J.---Through this writ petition, the petitioners' have challenged the vires of order dated 27.05.201 1 passed by the Member (Judicial-V)/Chief Settlement Commis-sioner/ Notified Officer / Administrator (Residual Properties) Board of Revenue, Punjab and requested that suit land may be sold to the petitioners under section 3 of the Evacuee Properties and Displaced Persons Laws (Repeal) Act No.XIV of 1975. 2. Brief facts of the case as mentioned in this petition are that the petitioners alleged that they purchased land measuring 88-Kanals and 19-Marlas comprising Khasra Nos. 283, 284, 287, 817, 873, 874, 876, 872, 280, 281 and 282 Village Prem Kot, Tehsil and District Hafizabad, from Fazal Hussain and Diwan Bakhsh sons of Miran Bakhsh, who were allottees of the said land against the claim at Khata RL-H No.154155 of village Prem Kot. The above allotment of the said allottee was cancelled by the Settlement Commissioner (Lands), Punjab vide order dated 26.02.1973 being excess allotment of land obtained on the basis of fraud as well as Khata RL-II No.70/3 of Village Pindi Bawaray . The predecessor-in-interest of the petitioners challenged the above cancellation order in W.P. No.470-R of 1973 which was disposed of by the learned Division Bench of this Court vide orders dated 02.10.1985 and 13.10.1985. Against the above order Civil Petition No.1078/1985 was filed which was dismissed by the Hon'ble Supreme Court of Pakistan vide order dated 17.09.1989 and upheld order of this Court. Petitioners filed application on 24.12.2008 to the settlement authorities for the purchase of the suit property which was turned down by the Member (Judicial-V) / Chief Settlement Commissioner / Notified Officer / Administrator (Residual Prokrties) Board of Revenue, Punjab vide order dated 27.05.201 1 who ordered to dispose of said land through unrestricted public auction however gave first right of purchase to the petitioners. The said order was challenged by the petitioners through the instant writ petition.
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3. The learned counsel for the petitioners argued that as per orders dated 02.10.1985 and 13.10.1985 passed by this Court in Writ Petition No.470-R/1973, the respondents are duty bound to sell the suit property to the petitioner under section 3 of the Evacuee Properties and Displaced Persons Laws (Repeal) Act No.XIV of 1975 and respondents are not competent to put the suit property for disposal through unrestricted public auction, as such the impugned orders are not sustainable. 4. I have heard the arguments advanced by the learned counsel for both the parties and gone through the record with their able assistance. 5. As far as the arguments of the learned counsel for the petitioners that this Court in W.P. No.470-R of 1973 passed orders dated 02.10.1985 and 13.10.1985 giving option to the petitioners that if they intend to purchase the said land under section 3 of the Act ibid, they may apply to the competent authority and if he found the petitioner eligible or qualify the mandatory legal conditions/criteria, should offer sale of the land to them in accordance with law. For ready reference, relevant paragraph of order dated 02.10.1985 and 13.10.1985, passed in W.P. No.470-R/ 1973, is reproduced as under: "6. In view of the above, the petitioners who claim to be purchasers for value for the last 20 years, may better apply to the relevant authorities for action under section 3 of Act XIV of 1975. If they satisfy the conditions therein, they shall be sold the land in accordance with law. The petition is accordingly disposed of. In the circumstances, the parties shall bear their own costs. (emphasis supplied) Perusal of the above order shows that this Court has passed no direction to straightway sell the land to the petitioners rather the matter was left open for the authority to objectively ascertain the eligibility of the petitioners and if they satisfy the conditions described in section 3 of Act ibid as well as the scheme framed whereunder then the land should be sold to them. Admitted ly the above order was passed in the year 1985 whereas the petitioners, for the first time filed application for purchase of the suit land on 24.12.2008 without explaining any convincing reason qua inordinate delay of more than 23 years rather they enjoyed the usufruc ts of the ex-evacuee/ state land without holding any justification or valid title. 6. For disposal of ex-evacuee agricultural land section 3(1)(b) of the Evacuee Properties and Displaced Persons Laws (Repeal) Act No.XIV of 1975 empower the Board of Revenue of the Province to deal with the said land under a scheme to be framed by the Provincial Government in this behalf. For ready reference, section 3 of the Act ibid is reproduced as under:- 3. Transfer of Property .---(1) All properties, both urban or rural, including agricultural land, other than such properties attached to charitable, religious or educational trusts or institutions, whether occupied or un-occupied, which may be available for disposal immediately before the repeal of the aforesaid Acts and Regulations or which may become available for disposal after such repeal as a result of a final order passed under subsection (3) of section 2, shall stand transferred to the Provincial Government, on payment of such price as may be fixed by the Federal Government in consultation with the Provincial Government, for disposal: (a).............. (b) in the case of rural properties, by the Board of Revenue of the Province under a scheme to be prepared by the Provincial Government in this behalf; Provided that agricultural land occupied by a person continuously_ for four harvests immediately preceding Kharif 1973 shall first be offered for sale to such person unless an order of ejectment has been passed against him in respect of such land: Provided further that only so much land shall be offered to such person as does not together with the land already held by him, exceed a subsistence holding within the meaning of the Land Reform Regulations, 1972. (emphasis supplied) 7. The Board of Revenue under section 3(1)(b) of the Evacuee Property and Displaced Persons Laws (Repeal) Ordinance, 1974 [which Ordinance later on was named as Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975] framed a scheme as "Scheme for Disposal of Un-Allotted Un-Occupied/ Occupied Evacuee Rural Agricultural Land" which was prom ulgated w.e.f. 19.11.1974. Under the above legislation/ policy an un- allotted, un-occupied/ occupied rural agricultural evacuee land if available in subs isting holding of a person within
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the meaning of land Reforms Regulations , 1972 as enunciated in Chapter I, shall first be offered for sale to sitting occupant subject to fulfillment of the terms and conditions of Act, 1975 as well as that of the Scheme on the subject. In the scheme of 1974 for disposal of agricultural land an elaborate criteria is described in aforesaid Scheme as under:- CHAPTER-I In this scheme unless the subject or context otherwise requires:-- i) "Un-allotted land" means evacuee land which has not been allotted/confirmed against verified claims or otherwise disposed or under the provisions of Displaced Persons (Land Settlement) Act, 1958, on or before 30.06.1974. ii) "Occupied land" means evacuee un-allotted land which is in continuous possession of the occupant for four harvests immediately preceding Kharif, 1973. iii) "Un-occupied land" means evacuee un-allotted land which is not in possession of any person including the land in adverse possession after Kharif, 1971. iv) "Subsisting holding" means holding of a person within the meaning of land Reforms Regulations, 1972." In Chapters II and III of the said scheme detailed criteria is prescribed for disposal of ex-evacuee agricultural land. The Chapter-II, III Para-2 of the Scheme is reproduced as under: "2. The agricultural land occupied by any person continuously for four harvests immediately preceding Kharif 1973 shall first be of fered for sale to such person on the following terms and conditions:- i) That such Persons/has/have been in actual cultivating possession thereof for a period of at least four harvests immediately preceding Kharif 1973 upto the extent of subsisting holding within the meaning of the Land Reforms Regulations. 1972 i.e. 12-1/2 acres. In case any other land is held by such occupant on the basis of an independent right, such holding shall be taken into account for determination the maximum limit specified above. ii) The occupant shall submit his option for purchase of land held by him to the Assistant Commissioner concerned who shall forward the same, after due verification, through the Deputy Commissioner to the Member (Revenue), Board of Revenue, Punjab. iii) The sale price shall be: a) Determined and payable at the rate of Rs.100/per P.I.U. and for the purpose of determining the units of land to be sold, its classification shall be based on Rabi, 1974. The concession to purchase land contemplated in the preceding paragraph shall be extended only to these occupants whose total land holding including the land intended to be purchased: (i) Does not exceed the subsisting holding: (ii) The intending purchaser is in continuous possession of the land and no order for ejectment has been passed against him in respect of such land ; (iii) Is claimant informer has not submitted information in respect of such land before 30.06.1974. (iv) Provided that if the intending purchaser does not apply for the purchase of the land by a specified date such land shall be sold through open auction at the reserved price of Rs.100/per P.I. unit. The procedure to auction this land shall be the same on prescribed under Chapter-IV of the Scheme (i). Occupancy tenants on the evacuee land shall be eligible to get the proprietary rights in the tenancy on-payment of Rs.10/per P .I.U. for which the last date of payment shall be 07.1 1.1989 "2." (emphasis supplied) Chapter -Ill Disposal of unallotted occupied agricultural land where the land holding of the occupant exceeds the subsisting holding. 3. All un-allotted occupied rural evacuee agricultural land held by occupants in excess of 'Cultivating holding' which does not fall under para 2 ibid, shall be put to auction according to procedure laid down in Chapter-IV in respect of un-allotted and un-occupied land; Provided that the un-authorized occupant shall have the right of first purchase.
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In case the aforenoted stipulation and qualifications are not meted out by the occupant in that eventuality the unoccupied available agricultural land should be disposed of through auction as envisaged in Chapter-IV Para-4 of Scheme 1974, which is as under . CHAPTER-IV "4. All the available un-allotted and un-occupied vacant rural agricultural land will be disposed of by means of un- restricted open public auction according to the following terms and conditions` . 1) Auction will be conducted by a Committee consisting of (1) A.C/ EACO/EASO and (2) Illaqa Magistrate of the area concerned. Where there is no Ilaqa Magistrate any Magistrate 1st Class nominated by the Deputy Commissioner . 2) The highest bid which shall not be below the reserve price may be accepte d or rejected by the respective Deputy Commissioner , C.O/S.O without assigning any reason. (emphasis supplied) 8. The petitioners' stance in this petition is that they purchased land measuring 88-Kanals and 19-Marlas from the original allottee whose allotment was cancelled by the settlement authorities on the ground of excess allotment but they remained in continuous possession over the said land. Suffice it to say in this regard that the provisions contained in Chapter-IV and Chapter-III of the Scheme are applicable on this case which dictate that the un-allotted ex-evacuee rural agricultural land in excess of cultivating holding shall be put to auction, however , the petitioners, being un-authorized occupants first right be offered for sale to them subject to fulfill the terms and conditions as prescribed. The suit land was resumed in favour of the state whereafter the petitioners got possession illegally and they were declared as illegal occupants. The ejectment proceedings were initiated against the petitioners and land was resumed in favour of the state, which lawful dispossession extinguish their every right if any attached with the said land and their claim went out from the domain of section 3(1)(b) of the Act ibid read with Scheme 1974. Under section 3(1)(b) of the Act !bid, the legislator used words "shall first be offered for sale to such person unless an order of ejectment was passed against him in respect of such land" and in Chapter-II (2)(i), again the same wording has been used by the legislator that if an occupant fulfilled the criteria of an agricultural evacuee land as prescribed and no ejectment order has been passed against him, the land was still in their possession in that eventuality the first offer of sale should be made to them. The word first offer garner material significance that when such offer should be made. The vendor should have full acquaintance of the worth and value of the land to be sold. For determination of the valuation of the land which belong to the state and is a public assets, the most appropriate procedure containing extraordinary fairne ss and equity is to adopt the modus operandi of holding unrestricted public auction and once the consideration of the asset has been determined/ ascertained, whereafter first offer should be made to the occupants under the principle of willing seller and willing buyer. Undoubtedly the property is owned by the state/Provincial Government which has unalienable absolute right sell its assets/property on price assessed after competition and if the petitioners being willing buyers want to purchase the property then first offer should be made to them to purchase the said property . Under section 3(1)(b) read with Scheme 1974, the rufal evacuee land un allotted, un-occupied may be sold to a person who shall fulfill the prescribed criteria but in this case the petitioners have not fulfilled the criteria,, as they are illegal occupants, the land was resumed through ejectment proceedings whereafter the possession of petitioners is that of illegal occupants on the state land and has no right enforceable under constitutional jurisdiction of this Court whereas the law lends nil support to the illegal occupant who come to Court with soiled hands and this Court is well within jurisdiction to withhold the exercise of its constitutional jurisdiction. In an alike issue the Hon'ble Supreme Court of Pakistan in C.P. No.709-L/2009 (decided vide order dated 02.01.2015) titled Member (Judicial- V), Board of Revenue/Chief Settlement Commissioner , Punjab and 2 others v. Sagheer Muhammad Khan and others , has set down a hallmark principle for disposal of public assets maintaining conclusively that after the promulgation of Repealing Act, 1975 all the ex-evacuee property/ public assets can only be disposed of through unrestricted and transparent open auction. The relevant portion thereof is reproduced as under: "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
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(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 Provinc e are duly protected. This shall not preve nt the Province from proceeding against the respondents or others both for recovery of compensation for occupation and , use of the property and for any other action civil or criminal in this case. This petition is converted into appeal and is allowed in the above terms." (emphasis supplied) As it has been clearly laid down by the Hon'ble August Court that the state asset/land should be disposed of through unrestricted open auction and any order passed by the executive authority/judicial or quasi-judicial forum in contravention of pronouncement of the August Apex Court shall indeed be considered as nullity in the eyes of law . 9. Next as per report of Naib Tehsildar , Hafizabad the possession of the suit land was resumed in favour of the state through mutation No.389 whereafter the petitioners got possession illegally and they were declared illegal occupants as per Jamabandi for the years 2006-07. The ejectment proceedi ngs were initiated against the petitioners and land was resumed in favour of the state. As a valid ejectment order was passed and executed against the petitioners and they were dispossessed which lawful dispossession extinguish their every right if any attached with the said land and their claim went out from the domain of section 3 of the Evacuee Properties and Displaced Persons Laws (Repeal) Act No.XIV of 1975. Further as per revenue record petitioners are illegal occupant upon the state land and they have no valid enforceable right under constitutional jurisdiction of this Court. Reliance is placed on the cases titled as Fazalur Rehman and others v. Provinc e of Punjab through District Officer (Revenue), Bhakkar and another (2014 SCMR 1351 ) and Muhammad Sharif through L.Rs v. Province of Punjab through District Officer Revenue, Pakpattan (2014 SCMR 334). Here in this case the petitioners are admittedly illegal occupants over the evacuee land, as such, they are not considered entitled for any discretionary relief and the illegal possession cannot be protected in constitutional jurisdiction of this Court. The Hon'ble Supreme Court of Pakistan in a case titled as "Shazia Gillani and others v. Board of Revenue, Punjab, Lahore through Member Colonies and others" (in C.P. No.732-L of 2016) has held that there is no protection to possession of usurpers of state property vide order dated 25.03.2016 and held as under:-- "The discretion of the learned High Court in terms of Article 199 of the Constitution or this Court as per Article 185 of the Constitution is not available for the protection of possession of people who are usurpers of state property . No case has been made out for interference. Dismissed accordingly ." In another case, the Hon'ble Supreme Court of Pakistan in Civil Petition No.882-L of 2015 vide order dated 15.03.2017 held as under:- "2. We find that in the light of above circumstances, the learned High Court rightly allowed the writ petition of the respondents and restored possession of the property to them, and correctly dismissed the writ petition of the instant petitioners, who are admitted encroachers of the property and are in unauthorized possession therefore. Resultantly , this petition is dismissed." 10. Admittedly the disputed land is an ex-evacuee agricultural land owned by the provincial government and it should be disposed of as per the procedure prescribed in section 3(1)(b) of the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975. The Courts of Law always keep in mind while dealing with the matters relating to public property and public interest. An extraordinary obligation is saddled upon the constitutional courts to keep abreast itself with law and facts of the case and when certain material facts unearthed then it should decide the matter as per law even without being influenced by respective pleadings of the parties. In this regard, the Hon'ble Supreme Court of Pakistan in a judgment cited as Provincial Government through Colle ctor, Kohat and another v . Shabbir Hussain (PLD 2005 SC 337 ), has held as under: "12. Likewise, the learned Presiding Officers are also required to exercise caution when they are dealing with matters relating to public property and public interest of which the Courts of law are the final custodians. It is true that we have never leaned in favour of giving of preferential treatment to the Gover nment departments or agencies but then we are equally obliged, while granting relief, to ensure that public interest is not permitted to be
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jeopardized and public property is not allowed to be squandered through mere collusion of some representative of a Government agency ." 11. Another aspect of this case is that admittedly the land in question is a public property which cannot be doled upon any person through private treaty to extend favoritism, nepotism and for undue B enrichment of individuals at the resources of public, which are meant for ultimate welfare and betterment of people. Further if after objective determination the disposal of said land is required then concerned authority should dispose of the said assets through unrestricted public auction in order to eliminate the element of fraud, nepotism favouritism and undue enrichment at the public resources. It is a public property and public functionaries are the trusty / custodians of the public/ State land which could only be disposed of in accordance with law and most transparent and suitable modus operandi which better serve the cause is to put such property for public auction. Reliance is placed on the case titled as Muhammad Ramzan and others v. Member (Revenue) Chief Settlement Commissioner and others (1997 SCMR 1635 ) wherein the Hon'ble Supreme Court of Pakistan held as under:- "18. The Government of the Punjab Province then prepared and prescribed Scheme for the management and disposal of available urban properties (See PLD 1977 Punjab Statute page 62). Certain provisions of the Scheme were amended in 1985 (See PLD 1985 Punjab Statute page 6). The terms "available properties" and "building sites" were defined in paragraphs 1 (c) and 1(d) of the Scheme, 1977. Paragraph 6 provided that an available building site on which a person in possession has raised a permanent construction and applied for its transfer may be transferred to him along with an area which does not exceed three times the constructed area on the transfer price and where any person having made a permanent construction on a building site did not apply for transfer , it should be disposed of through unrestricted public auction along with the construction. The value of such construction shall be determined by the Deputy Administrator and paid to such a person out of the auction proceeds by such authority as may be specified. Paragraph 11 of the Scheme also provides for auction of the building site." (emphasis supplied) The above view has been reiterated in case titled as American International School System v. Mian Muhammad Ramzan and others (2015 SCMR 1449 ). Further in C.P. No.709-L/2009 titled Member (Judicial-V), Board of Revenue/ Chief Settlement Commissioner , Punjab and 2 others v. Sagheer Muhammad Khan and others , the Hon'ble Supreme Court of Pakistan vide order dated 02.01.2015 settled that after the Repeal Act, 1958 the property can only be disposed of through open auction, the relevant portion thereof is reproduced as under: "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 arran gements 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 of compensation for occupation and use of the property and for any other action civil or criminal in this case . This petition is converted into appeal and is allowed in the above terms." (emphasis supplied) Further the Hon'ble Supreme Court of Pakistan in Civil Petition No.2022-L of 2010 titled as Hafeez Akhtar Randhawa v . Member (Colonies), Board of Revenue has held as under:- "We may also add that in re-Suo Motu Case No.10 of 2009 (2010 SCMR 885) and in a number of subsequent cases this Court has already held that lands, mines, minerals, gas etc. are assets which belong ultimately to the people of Pakistan and the same cannot be doled out at the whims and fancies of state functionaries. In another case titled Arshad Waheed v.…
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