' Facts giving rise to the present writ petition are to the effect that a land measuring 35 Kanals, 15 Marlas bearing Khasra No.139/33 is situated within urban limits of Mandi Bahauddin City at a Central location under the control of Evacuee Trust Property Board as according to the record this property belongs to Hindu community which was dedicated for religious purpose and out of the said property one Kanal was used for burning of Hindu's dead-bodies as this part of land is known as 'Marian'. In the Record of Rights of said property pertaining to the years 1925-26, there is an entry in the Column No.4 of cultivation of the Record of Rights as "Maqbooza Ahl-eHanood". The petitioner had applied to the Government for the transfer of said land in favour of Tehsil Municipal Administration for utilizing the same for graveyard, Sabzi Mandi and Public Park. On his visit to Mandi Bahauddin on 28-3-2002, the Governor of Punjab had promised to transfer this land for the purpose of graveyard in favour of the petitioner. The Tehsil Nazim concerned had also applied to the Chairman Evacuee Trust Property Board for leasing of said property in favour of the petitioner for the use of graveyard, Sabzi mandi and transport terminal etc. The Chief Minister Punjab had also matte approval for the transfer of land in dispute in favour of Tehsil Municipal Administration, Mandi Bahauddin/petitioner vide letter dated 5-6-2003 which was later on, withdrawn' through Chief Minister's Secretariat letter dated 7-7-2003.
2. The Chairman, Evacuee Trust Property Board through publication in daily newspaper Nawa-e- Waqt Rawalpindi, dated 23-3-2002 a,nnounced the disposal/sale of evacuee trust properties situated within the limits of District Mandi Bahauddin, including the property in dispute, through an open auction to be held on 22/23-4-2002. The property in dispute belonging to the Auqaf Department had been auctioned and respondent No.5 being the highest bidder had purchased the said property for a consideration of Rs.24,000/- per Marla. The auction was proved by the Chairman, Evacuee Trust Property Board and respondent No.5 had made payment of whole auction money and a sale-deed had been executed in favour of respondent No.5 on 18-7-2003.
3. The petitioner, through this writ petition, had assailed the vires of auction proceedings, registered sale-deed dated 18-7-2003 and sanctioning of Mutation No.6781 dated 22-7-2003 in favour of respondent No.5.
4. Parawise comments and report from the respondents were called for which have been received and perused.
5. In view of the contentions embodied in the writ petition as well as submissions made by the learned counsel for the petitioner, this writ petition is admitted to regular hearing. Since the respondents are represented by their counsel, therefore, I have decided to dispose of this matter today as notice case.
6. Learned counsel for respondent No.5 at the very outset has objected that the petitioner has no locus standi to file this petition and he is not an aggrieved person in accordance with the provision of Article 199 of the Constitution; that the writ petition is hit by principle of laches and the same is liable to be dismissed as the same has been filed without exhausting the alternate remedy by filing a revision before the Government under section 17 of the Evacuee Trust Properties (Management and Disposal) Act, 1975. Further objected that the petitioner had filed a civil suit which has not been disclosed by the petitioner in the memo of writ petition; that the petitioner has also challenged the character and status of the property which cannot be gone into by this Court as it is the exclusive jurisdiction of the Chairman of the Board as enshrines in section 8 of the said Act.
7. Mr. Shahzad Shaukat, learned counsel for the petitioner has vehemently opposed the arguments addressed by the learned counsel for respondent No.5, contending that the petitioner has approached the Provincial, and Federal Government as well as Evacuee Trust Property Board for the transfer of said property . In its favour for a Muslim graveyard, Sabzi mandi and for establishing a public transport terminal. He relied on case of Ardeshir Cowasjee v. Karachi Building Control Authority (KMC) Karachi and 4 others (1999 SCM R 2883). Further argued that the auction of the property was to be held on 22-4-2002 but on the said date, the auction was cancelled and thereafter it was auctioned on the next day i.e. 23-4-2002 without issuing notice to the petitioner as well as public in general; that the approval of the auction had not been granted by the competent authority i.e. Chairman/Board and when after the registration of sale-deed dated 18-7-2003, respondent No.5 tried to occupy the said land then this fact regarding auction and sale of the property came into the knowledge of the petitioner. Further argued that the petitioner had also deposited the money and call deposit to participate in the auction but it was not held in the public and the whole proceedings were conducted in a deceitful manner. Learned counsel for the petitioner further submitted that according to the entries in the Record of Rights the property in dispute is not belonging to Evacuee Trust Property Board and according to the Revenue Record it belongs to the Provincial Government. Further the learned counsel has drawn attention of the Court towards copies of Record of Rights, pertaining to the years 1950-51 to 1994-95, wherein, in the column of ownership there is an entry that the Province is the owner of the suit property. Learned counsel for the petitioner attacked the jurisdiction of the Auction Committee, determining the reserved price of land of Rs.20,000- per Marla. Further added that the Board has determined the reserved price of the land i.e. Rs.30,000 per Marla and it was reduced by the Committee without any authority to Rs.20,000 per Marla. Learned counsel for the petitioner further submitted that the reserved price of the property i.e. Rs.30,000 per Maria had not been fixed according to the market rate of the reserved price and that is the price which is to be determined by the Deputy Collector for levying the stamp duty. He further argued that the Auction Committee was not competent to change the reserved price determined by the Board from Rs.30,000 to Rs.20,000 personal Marla and it was the discretionary power of the Chairman of the E.T.P. Board. He continued that price fixed by the Board was also less than the price fixed by the Revenue Authority for levying the stamp duty.
The Authority of the Board to determine the reserved price of the land had been restricted by law to the price fixed by the D.C. And the reserved price fixed by the Board was less than that price.
Learned counsel argued that the auction sale price had not been paid by respondent No.5 in accordance with the terms and conditions of the auction and the whole proceedings of auction/sale of the property had not been performed in accordance with the prescribed procedure. Further submitted that the petitioner was present on 22-4-2002 to participate in the bidding but the auction was postponed for an indefinite period of time and no date was fixed by the Auction Committee but with the connivance of the members of the Auction Committee the property in dispute had been sold out without putting the same into open auction and that the whole proceedings of auction and execution of sale-deed were tainted with mala fide. Further contended that remaining 3/4 auction price of the land had not been deposited by respondent No.5 within one month of the approval of auction by the Competent Authority. He further added that the sale-deed had been executed on 18-7-2003 when the remaining is price was paid contrary to the terms and conditions of the auction.
8. On the other hand, learned counsel appearing on behalf of contesting respondent No.5 has vehemently opposed the submissions made by the learned counsel for the petitioner, contending that the petitioner himself did not participate in the auction; that the auction could not be held on the objection of the participants with regard to the excessive reserved price of the land and it was decided that it will be held on the next day; that the Competent Authority approved the auction and after approval, respondent No.5 had deposited the 34 remaining auction price, whereafter the sale-deed in his favour had been executed.
9. I have heard the learned counsel for the parties at length and perused the record with their kind assistance.
10. The first question that boils down for determination by this Court is that whether the petitioner has the locus standi to file the instant writ petition, or not, as objected by the learned counsel for the respondent No.5. The land in dispute is situated in the center of the city Mandi Bahauddin which had been disposed of through auction in favour of respondent No.5. The petitioner (T.M.A.) had been keenly interested in transfer of this property in its favour for graveyard, Sabzi mandi and for a public transport stand in the larger public interest. The petitioner had approached the Chief Minister Punjab, for the purpose, who gave approval vide letter dated- 5-6-2003, then, on an information that the said land had been transferred, this approval was withdrawn. The petitioner, thereafter, approached the Prime Minister Secretariat and wrote number of letters and applications. Moreover, the petitioner filed a civil suit titled as "T.M.A. v. Evacuee Trust Property Board". When the property in dispute was put to auction on 22-4-2002 the petitioner had deposited the earnest money of Rs.50,000 to participate in the auction which is reflexed at serial No.33 in the list of the participants prepared by the Committee. On 22-4-2002, the auction could not be held and postponed upto 23-4-2002 when it was lastly auctioned in favour of respondent No.5. On that day, the petitioner absented and did not participate with this impression that it shall be re- auctioned later on. From the above, it is evident that the petitioner (T.M.A.) was very much interested for the transfer/purchase of the property for its use in the public interest.
11. The question of locus standi had been dealt with by the Hon'ble Supreme Court of Pakistan in Ardeshir Cowasjee's case (supra), wherein, it was observed that for maintaining a proceeding in writ jurisdiction, it was not necessary that the petitioner should have a right in the strict sense, but it was enough if he discloses that he had a personal interest in the performance of the legal duty, which if not performed or performed in a manner not permitted by law, would result in the loss of some personal benefit or advantage or curtailment of a privilege in liberty or franchise. The Court had further observed that the general approach to the concept of locus standi in the context of "sufficient interest" has to receive a generous interpretation and it has to be treated as a broad and flexible text: In this case, the petitioners before the Supreme Court of Pakistan were private individuals but in the case in hand it was a corporate/statutory body which has been fighting for the transfer of land in dispute in its favour. By intending to participate in open auction by the petitioner which is established from the deposit of Rs.50,000, the pre-condition to take part in the bidding is sufficient to observe that the petitioner has locus standi and is entitled to call in question the auction proceedings and sale of the property in favour of respondent No.5, therefore, this objection of learned counsel for respondent) No.5 having no force is repelled.
12. The other objection of learned counsel for respondent No.5 is that the writ petition is barred by principle of laches. The petitioner was a party/bidder in the auction proceedings to be held on 22- 4-2002 but due to the objections of the participants that the reserved price of the land Rs.30,000 per Marla is excessive than the potential value of the property and it was postponed and conducted on 23-4-2002. The assertion of the petitioner is that on the said date this auction had not been conducted and it was a colourful exercise of the respondent that the whole auction proceeding was conducted in a concealed and deceitful manner. When it was postponed on the objection of the representative of Tehsil Government that the property in dispute was not an evacuee trust property rather it belongs to Provincial Government, the petitioner was not informed by the respondents through any mode of service or advertisement that the auction was to be held on 23-4-2002 and the sale deed had been executed on 18-7-2003 after about one year of the auction when the remaining sale price of the property of Rs.1,71,60,000/- was deposited and at the time when respondent No.5 tried to start construction over the land this factum came to the knowledge of the petitioner that the property had been sold out to respondent No.5. The principle of laches per se is not a bar to the Constitution petition and it is to be examined on equitable principles and with reference to the facts of each case. Laches of several years could be overlooked if the facts of the case and dictates of justice so demand. In some cases, the laches of a few months may be fatal to a Constitution petition. There is a marked distinction between delay in filing of a legal proceeding within the period specified in an Article of the Schedule to the Limitation Act and the delay in filing of a Constitution petition for which no statutory period is provided and in the case, where the limitation is provided the delay of each and every day is to be explained by showing "sufficient cause" for condonation of delay and in case of laches, the case is to be examined on equitable principles for the reasons that grant of Constitutional relief is a discretionary. In the case in hand, as reflected from the circumstances mentioned above, the petitioner is not at fault and the question of laches is not a bar to file the Constitution petition. This argument has further been strengthened by the dictum laid down in cases of Pakistan Post Office v. Settlement Commissioner and others (1987 SCM R 1119), Syed Asif Majeed v. A.D.C.(C)/ASC(L)
Lahore and 15 others (2000 SCM R 998) and Ardeshir Cowasjee's case (supra). Resultantly, this objection of learned counsel for respondent No.5 being misconceived it, also repelled.
13. The Third objection of learned counsel for respondent No.5 is that the petitioner had earlier filed a civil suit and this .Fact was not disclosed in the memorandum of this writ petition. The civil suit, mentioned above, had been instituted on 22-12-2001, wherein, it was prayed that the plaintiff- petitioner is entitled for declaration with respect of the property in dispute and the defendant- respondent be restrained from collusively alienating the same in the name of any other person.
The suit was dismissed as withdrawn on 12-1-2002 much before the auction of said property and the filing of the suit has no nexus with the said auction. At that time, the property was not put to auction nor it was advertised for the same.
Accordingly, this objection of the learned counsel for respondent No.5 having no legal force is repelled.
14. As to the objection of learned counsel for the respondent regarding non-maintainability of the writ petition without exhausting alternate remedy, it is suffice, to say, that section 17 of the Evacuee Trust Properties (Management and Disposal) Act, 1975 has provided revision to the Federal Government. The language of this section is reproduced as under for further ready reference:-- "17. Revision.---The Federal Government may at any time, of its own motion or otherwise, call for the record of any case or proceedings under this Act, which is pending or in which the Chairman, an Administrator, a Deputy Administrator or an Assistant Administrator has passed an order, for the purpose of satisfying itself as to the correctness, legality or propriety of such an order, and may pass such order in relating thereto as the Federal Government thinks fit: Provided-that the record of any case of proceedings in which the Chairman, an Administrator, a Deputy Administrator or an Assistant Administrator has passed an order shall not be called for under this section on the application of any aggrieved person made after the expiration of fifteen days from the date of such order."
15. The power to accord approval vests with the Board or its delegatory and the revision to the Federal Government is maintainable against an order passed or proceedings pending before the Chairman but in the instant case the Chairman had not exercised the jurisdiction. It was the E.T.P, Board which had accorded approval to the sale of the property through auction in favour of respondent No.5 as is evident vide letter dated 23-4-2003 annexed by the petitioner as Annexture EE with its rejoinder, so the objection of the learned counsel for respondent that he petitioner has approached this Court without exhausting alternate remedy is without any force, hence, repelled.
16. The property in dispute belongs to E.T.P. Board Punjab as reflected in the Record of Rights of many years of he property. The question if arises that whether an evacuee is attached with a charitable, religious or educational trust or institution or not, it shall be decided by the Chairman, whose decision shall be final and shall not be called in question in any Court and the Chairman would be bound to declare such property to be an Evacuee Trust Property through a Notification in the official Gazette as enshrined in section 8 of Evacuee Trust -Properties(Management & Disposal )Att No.13 of 1975.
17. From the above referred provision of section-8 of the Act, it is manifestly clear that it is the sole discretion of the Chairman of the Board to declare any property as evacuee trust property. To get resolve this controversy, it was incumbent upon the petitioner to approach the said competent authority/ Chairman. The property has already been declared as trust property and the petitioner if dissatisfied would have availed of the alternate remedy by filing a revision petition before the Federal Government, challenging the order of Chairman of E.T.P. Board, declaring the said property as such. The finding of the Chairman of the Board that a property was evacuee trust property, is not open to interference by the superior Courts. Reference in this context, can be made to the case of Fazal Elahi v. Chairman, E.T.P. Board and another (1987 CLC 1010). The power to decide status of evacuee property being trust property or not vested with Chairman, Evacuee Trust Properties as laid down in case of Jamal Bhai v. Administrator, Evacuee Trust Property (1985 CLC 1411). The petitioner has neither challenged the order of the Chairman of E.T.P. Board nor of the Revising Authority/Federal Government. This controversial point raised by the learned counsel for the respondent cannot be attended to by this Court in its Constitutional jurisdiction.
18. A petition required decision on disputed intricate and controverted questions of fact which could not be decided without recording evidence of the parties and/or witnesses. Reference in this respect, can be made to the case of Dawood v. National Accountability Bureau (Sindh) (2004 PCr.LJ 356).
19. Under section 18-DD of Scheme for the Lease of Evacuee Trust Agricultural Land 1975 of Manual of Waqf Laws it provides that the Board or its delegate may, at his discretion, accord approval to the sale of evacuee trust agricultural land, which has been declared as trust, as a result of judicial verdict under sections 8 and 10 of Evacuee Trust Properties (Management and Disposal) Act, 1975 and is declared uneconomic due to reason that the possession of the land could not be taken over by the Board due to further litigation and that the Board has never earned a penny as revenue from the said land, through negotiation with the occupants, irrespective of the period of litigation, if such sale appears to be the best course, as an act of good management under the circumstances. The reserve sale price of the land shall be fixed with reference to the prevailing market rate; and in section 18(d)(1) the Chairman is authorized to revise the reserve bid; and further provided that in case of three auctions having been held and the rate of bid being found less than the reserve bid, the Chairman may revise the reserve bid which may not be less than the highest bid received during the previous auctions and the land decided to be disposed of by sale through public auction shall be transferred to the highest bidder provided the right of first refusal shall be given to the occupants of the property to purchase it at the auction rate and the auction shall be conducted preferably on the spot by the Committee constituted under sub-clause (6) of clause 10.
20. The market price for sale of the property shall be recommended by a Committee consisting of the following (i) Member, E.T.P. Board (to be nominated by the Chairman), (ii) Administrator of concerned Zone (iii) Deputy Secretary, E.T.P. Board secretariat concerned. The Committee, shall submit its report to the Chairman through Deputy Secretary, E.T.P. Board, concerned. The proposal for sale or otherwise of the property, shall finally be decided by the Chairman, E.T.P. Board. The Property in dispute for sale had been decided by the Chairman through public auction and the Board or its delegatory may at its discretion accord approval to the sale of evacuee trust properties.
21. There is no cavil with the fact that the Chairman is competent to revise the reserve price. In the instant case, reserved price was reduced by the Committee itself from Rs.30,000 to Rs.20,000 per Marla and highest bid offered by the bidder was Rs.24,000 per Marla. The Committee has recommended the case for approval of the auction, receiving Rs.42,90,000 1/4th of the sale price out of the total auction money of Rs.1,71,60,000.
22. The respondents have taken the stand that the property was put to auction with the approval of competent authority and the dates for auction were fixed according to the advertisement published in daily Nawa-e-Waqt, Rawalpindi as 22/23-42002. The petitioner itself deposited Rs.50,000 as security to participate in the auction proceedings. Mr. Arif Aziz Sub-Registrar of District Administration, member of the Auction Committee has raised objection to the effect that the property belongs to Province of Punjab and not to the E.T.P. Board and on 22-4-2002 the property could not be auctioned rather it was auctioned on 23-4-2002 as per schedule issued by the respondents.
' The bid sheet dated 23-4-2002 depicts that said Arif Aziz on 23-4-2002 had participated in the auction proceedings and about nine persons were present at the time of auction. The formal approval of the auction for sale of the land had been accorded by the Evacuee Trust Property Board after about one year and during this period neither the petitioner nor any other person had agitated against the auction proceedings conducted on 23-4-2002.
23. As regards the objection of learned counsel for the petitioner that the reserved price of the land could not be revised by the Auction Committee as it was the power of the Chairman, suffice it to say that when the case was put for approval before the Board, the approval had been accorded.
From this act of the Board, it is manifestly clear that the Board has given its implied sanction, had there been any objection the Board would not have granted the approval.
24. As to the argument of learned counsel for the petitioner that the reserved price was not fixed according to the market value of the property equal to the price fixed by the D.C./Collector for levying stamp duty on the sale of the property situated in the said area. The petitioner has not produced any documentary proof to establish that if the reserved price was not according to the market price of the land then what was and how much was the market price, which could be the reserved price of the property in dispute. It was the legal obligation of the petitioner to establish this fact by producing sufficient and convincing evidence for which he has miserably failed.
25. It is admitted fact that the controversy involved in this petition pertains to question of fact and where there are controversial questions of fact, adjudication on which is possible only after recording all types of evidence by the parties and the same can be determined only by the forums concerned and in suchlike cases the Constitutional petition would not be competent, subject to certain exceptions. In this context, reference can be made to the cases of Muhammad Yunus Khan v. Government of N.-W.F.P (1993 SCM R 618) Mst. Kaniz Fatima v. Muhammad Salim (2001 SCM R 1493) and Punjab Small Industries Corporation v. Ahmad Akhtar Cheema (2002 SCM R 549).
26. Furthermore, learned counsel for respondents/E.T.P. Board has opposed the contentions of learned counsel for the petitioner and supported the auction proceedings and disposal of the property in favour of highest bidder/respondent No.5.
27. For the foregoing reasons and following the dictum laid down in the cases referred to above by the learned counsel for the respondent, this writ petition being devoid of merits, is dismissed.