' This judgment proposes to decide four Constitutional Petitions (W.P. No,13009/1995, W.P.
No,16472/1995, W.P.No,4744/1997 and W.P. No,23368/ 1996) raising similar questions of law and facts between the same parties and regarding the same subject-matter.
2. W.P. No,13009/1995 was filed, by Al-Hajj Raees Ahmad Qureshi, leaseholder of land measuring 2 Kanals, 15 Marlas and 15 sq. Ft. From the Government of Punjab vide memo. Dated 24-12-1990 for installation of a Petrol Pump on Syed Ashiq Hussain Road, Shadman, Lahore, abutting the sullage water drain. W.P. No,16472/1995 was filed by same Al-Hajj Raees Ahmad Qureshi and the Shell Pakistan Limited challenging order of the District Magistrate, Lahore, dated 12-11-1995 withdrawing "No Objection Certificate" issued in favour of the petitioners vide letter dated 2-5-1992. W.P.
No,4744/1997 was also filed by them praying a direction that they may not be dispossessed through demolition of their Petrol Pump, on the basis of withdrawal of No Objection Certificate". W.P.
No,23368/1996 was filed by one Ch. Ali Muhammad, in a representative capacity asserting that they are small shop-keepers holding Jumma Bazar/Ramzan Bazar under permission from the Administrator. Market Committee, Kot Lakhpat, Lahore, alongwith the sullage water drain on Link Shadman Road, Lahore and prayed writ of mandamus, besides a restraint order that the respondents should not interfere in their business.
3. Precisely, .Relevant facts are that land measuring 2 Kanals 15 Marlas and 50 Sq. Ft. Out of Khasra No,4266 in Revenue estate Ichhra located on Syed Ashiq Hussain Road, Shadman, Lahore was leased out by the Deputy Commissioner on behalf of the Government of Punjab on the basis of a sanction by the Chief Minister, Punjab routed through Board of Revenue vide its Letter No, 8039- 90/12552-CSI, dated 24-12-1990 for a period of four years for installation of a Petrol Pump in the name of Al-Hajj Raees Ahmad Qureshi. After sanctioning of mutation possession of the land was delivered to the lessee who subleased the land in the name of Shell Pakistan Limited (petitioner No,1) who moved to the Ministry of Petroleum and Natural Resources Division, Government of Pakistan for necessary permission to install the Petrol Pump. After obtaining the sanction the District Magistrate was approached for grant of "No-Objection Certificate" under rule 114 of the Petroleum Rules, 1937 which was granted on 5-6-1991. An application to the Inspector of Explosives for Storage licence was moved which was allowed on 31-7-1992. In the course of construction of Petrol Pump, WASA opposed it on the ground that construction of Petrol Pump would cause obstruction in the flow of sullage/rain water in, the drain passing through the Khasra number in question. On the said position, Lahore Development Authority (Town Planning Wing) refused sanctioning of construction site-plan and "No Objection Certificate" vide order dated 5-1-1992 was refused. Al-Hajj Raees Ahmad Qureshi aggrieved of refusal of sanction of site-plan and "No Objection Certificate" by Lahore Development Authority filed W.P. 1841/1992 which was disposed of vide order, dated 18-11-1992 directing the petitioner to file an appeal against the order rejecting building plan. The appeal filed by the petitioner was dismissed by the Director General, Lahore Development Authority through an order, dated 26-12-1992 where against the petitioner filed W.P.
No,1406/1993 which was accepted by this Court on 3-7-1994 and it was ordered that "the respondents shall now proceed to sanction building plan of the petitioner without any delay in accordance with law". In response to which, the site-plan was sanctioned but WASA (Water and Sanitation Agency) interrupted the construction necessitating filing another W.P. No,13009/1995.
Through an interim order 23-4-1996, petitioner No,2 was allowed to raise construction at his own risk. The interim order, dated 23-4-1996 reads as under:-- "In reply to the assertion made by the learned counsel for WASA that the lease granted to the petitioner for the installation of a petrol pump at the site in question has expired, Mr. Faqir Muhammad Khokhar learned counsel for the petitioner has produced a photo copy of the Chief Minister's directive for the grant of lease in favour of the petitioner till the year, 2002. He adds that an amount of Rs,49,777 has been deposited as fee of the lease in favour of Deputy Commissioner, Lahore in March, 1995. He further states that Pakistan Shell has undertaken to raise construction at the site in question and that substantial construction has also been raised and if the petitioner is not permitted to proceed with the completion of construction, he would suffer an irreparable loss.
He states that he would undertake the construction at his own risk and cost and if ultimately the writ petition is decided against him, he would be responsible for the consequences.
2. In this view of the matter, the petitioner is allowed to proceed with the construction with an undertaking to the Court that the eonstruction so raised by him will not in any manner obstruct the smooth flow of sullage water and it would be in accordance with the sanctioned plan and building regulations. This order will be liable to be withdrawn if at any stage it is brought to the notice of the Court that flow of sullage water in any manner has been obstructed by the construction raised by the petitioner.
' The petition shall be listed for hearing in the month of June, 1996."
4. In the meanwhile, Ch. Ali Muhammad writ petitioner of W.P. No,23368/1996, filed his petition asserting their right of holding of Jumma Bazar/Ramzan Bazar on the road where the Petrol Pump above-discussed was being installed, he also challenged installation of Petrol Pump averring that it will obstruct the flow of sullage water. Ch. Ali Muhammad challenged the authority of the Chief Minister to lease out the colony/ Nazool land being opposed to the Punjab Government Rules of Business, 1974. This petitioner has not appended any list of persons/shopkeepers on whose behalf this petition has been filed or some application under Order I Rule 8 C.P.C. Or any document showing any lawful permission to hold Jumma Bazar/Ramzan Bazar, over the road in question which is neither controlled by the Administrator Market Committee, Kot Lakhpat, Lahore nor is a declared/ notified market area under the Punjab Agricultural Produce Markets Ordinance, 1978.
Licence, if any, by respondent No,1 to hold any market in the area not falling within its jurisdiction or competence, confers no right in favour of the petitioner to hold Jumma Bazar. As claimed. If the petitioner is being obstructed by respondent No,7 on the ground that the persons holding Jumma Bazar throw garbage/rubbish in the drain which caused obstruction in the flow of water, cannot be stopped from the complained activity especially when the petitioner has not shown his any vested right as noted above and violation of law. He may approach the concerned authorities for some alternative land, suitable for their business. As far as this petition is concerned, it is without any substance and deserves no determination. W.P.No,23368/ 1996 being devoid of any force/merit is dismissed.
5. As regards writ petitions filed M/s. Shell Pakistan Limited and Al-Hajj Raees Ahmad Qureshi, these petitions were earlier accepted by this Court vide judgment dated 23-9-1997 but the judgments were set aside by the Intra Court Appeal Bench through judgment dated 18-5-2004 with the observations that entire controversy canvassed by the parties was not taken care of by the then learned Single Judge in Chambers of this Court and after setting aside the judgment dated 23-9- 1997, case was remanded for fresh decision.
6. Learned counsel for the petitioners submitted that though the District Magistrate was not competent to cancel the "No-Objection Certificate", without hearing the petitioners yet all the reasons given by him are non-existent and do not furnish lawful basis for his order dated 2-5-1992.
He further contended that the petitioners still hold lease rights from the Government of Punjab and they by incurring huge expenses installed the Petrol Pump after obtaining "No-Objection Certificates" from all the concerned departments and thus, they, have a right to continue their business which does not cause any hindrance in flow of sullage water in the drain flowing as its back. He further elaborated his arguments by urging that the drain in question has a considerable width at the place where the petrol pump is located and opposition of the WASA authorities is for ulterior motives and is tainted with mala fide intention. It was also submitted on behalf of the petitioners that within the municipal limits, there is no restriction of keeping distance between the two Filling Stations and that no proposal for cancellation of lease has been moved to the Board of Revenue, there did not exist any green belt, WAPDA authorities were not concerned with the site in question as no High "Tension Power Wire" passed over the site in-question and that the site in question was not owned or possessed by the WASA thus, according to him, impugned order dated 2-5-1992 passed by the District Magistrate is not sustainable.
7. Learned counsel appearing on behalf of the WASA opposed the arguments of the petitioner, supported cancellation of "No-Objection Certificate" by the District Magistrate and urged that lease in favour of the petitioner has already expired which was not extended by any competent authority besides the fact that the initial lease by the Government of the Punjab/ Chief Minister was illegal as the Nazool land was in the control of Board of Revenue. It was also contended that the building of the Petrol Pump does not maintain the distance of the required space between the building and the drainage. He also submitted that in the days of Monsoon, the construction in dispute would cause obstruction in flow of waste and rain water, causing overflow/ floods in the area.
8. I have anxiously considered the respective arguments of the learned counsel for the parties and have examined the record, appended herewith. Lease of Nazool land in favour of the petitioners was granted under the orders of the then Chief Minister who had no lawful authority to transfer/lease the Nazool land under the control of Board of Revenue, Punjab, without observing the legal formalities. The competent authority qua lease of the Nazool land is Board of Revenue and not the Chief Minister or the Deputy Commissioner. Dealing with the subject under discussion and to accomplish the efforts to find out as to whether proper method was adopted in granting the lease in question, I may first highlight true concept of Nazool land, for which purpose reference can be made to para.785 of Punjab Land Administration and Management Manual which enjoins that: "785. So far we have been dealing with sales and leases of waste land owned by the State made on the authority of rules issued with the sanction of the Government of India. But the State may have acquired by escheat or otherwise cultivated land or town sites, the ownership of which it is prepared to transfer on various terms to public bodies or private individuals. Occasions may also arise for the grant of waste-lands on conditions more favourable than those embodied in the lease rules. A classification of the transfers referred to above and directions as to the sanction required in each description of case are contained in the resolutions of the Government of India reproduced in Appendix IV. Nazool property, within the limits of a municipality, notified area, or small town not of all kinds, which belong to Government, and are not in departmental charge. Nazool property, outside the limits of a municipality, notified area, or small town, means all immovable property, other than agricultural land, wells and tanks used primarily for agricultural purposes, which belong to Government and are not in departmental charge."
' Leases of such lands have been dealt with in paras.783 and 784 of Manual (ibid), and the Rules for the Leases of Waste Lands in the Punjab, as contained in Appendix III of said Manual. Rule 6 thereof, being germane to the proposition in hand, is reproduced as below: "6. (i) If the Collector entertains the application, he shall, when necessary require the applicant to deposit the cost of demarcating surveying and mapping the land and cause the land to be demarcated, surveyed and mapped. He shall, at the same time, publish a proclamation stating that the land has been applied for on lease, and that all, claims and objections should be preferred within three months.
(ii) The proclamation shall be published in the vicinity of the land applied for on lease, and after it has been so published, a copy shall also be pasted at the Collector's office and at the office of the Tehsil in which the land is situated. "
' The procedure as prescribed by Rule 6 (ibid) aims at eliminating corruptor/secret transactions and safeguards the interest of the Government treasury and the interests of the public at large, as well. This procedure was never adopted and there is absolutely nothing on record to provide lawful justification to endorse any action processed or completed in departure thereof, especially the procedure adopted in the instant case which has no legal sanctity.
' In this connection, it is also pertinent to refer to the instructions of the Board of Revenue embodied in Standing Order No,67, para.54 of which stipulated that:
54. Lease of land for buildings.--- The erection of permanent building on land effectually destroys its value for ultimate sale. Collectors should not, therefore, entertain proposals, particularly from private individuals or institutions, for the lease of land for building purposes unless there appears to be Absolutely no alternative.
' Whenever such a request is received, the Collector should at once call upon the applicant to state whether he is prepared to purchase the land. If he agrees, proposals for sale of the land should be submitted. If however, the land is to be leased for building purposes, the Collector should invariably state the necessity for the proposed lease and give reasons why it cannot be sold. If it is a town site, the Collector should submit along with the proposal a town plan indicating the site to be leased."
' To be more precise and to judge the matter in direct and vivid manner, I may refere with advantage to the circular/letter No,5525-75-1/234-CS dated 23-1-1976, issued by Board of Revenue, Punjab which outlined instructions for disposal of State/Nazool Surrendered Lands under Martial Law Regulation No,89/91, paras.1(i) and (xiv) of which prescribed that:
(i) The proposal should be advertised for at least one month before its submission to Government as required in para.36 of Standing Order No,67 read with para.231 of the Punjab Colony Manual; and in the manner laid down in the L.A.M. Appendix-III=C, paragraph 6(ii) Rules for lease of waste land.
(xiv)In the case of lease, the market rental value of land should be assessed under rules and indicated in the proposals."
' This was the method which was attracted to this case, and the authorities were under obligation to follow it to ensure fair play and transparency. If any such departure is made from said statutory provisions which infringed/denied the right of the public, especially of those who had equal right to the proposed transaction, or at least felt interested to agitate there against by way of raising lawful objections, thus departure thereof, is illegal and unconstitutional.
9. Besides it, the lease-deed was executed by the Deputy Commissioner on behalf of the Punjab Government on 27-1-1991 which expired even earlier to the filing of instant writ petitions. The petitioner did not append any lease deed, renewed by the competent authority and even the one which was originally executed under the unauthorized orders of the then Chief Minister, would not come to his rescue, as the said lease, as well, stood determined by efflux of the time limited thereby, as per section 111 of the Transfer of Property Act, 1882. No Objection Certificate granted by the District Magistrate was reconsidered by the District Petrol Pump Committee held on 22-5-1992, who decided to have reconfirmation/ approved from the Chief Minister's Secretariat, which appears to have not received, that is why the Deputy Commissioner, thereafter, through his letter dated 14-4-1992 requested the Board of Revenue for cancellation of land leased out to Al-Hajj Raees Ahmad Qureshi for installation of petrol pump in the public interest. Ministry of Natural Resources Division, granted sanction to the WASA for leasing out berms of the drain in question for nurseries etc. To protect its decay/erosion and to give a better out look. WASA claims that petrol pump is obstructing flow of water, especially in the rainy weather which is not without substance.
The claim of the petitioners that there is no obstruction on account of their constructions, being a disputed fact, cannot be gone into Constitutional jurisdiction of this Court. The petitioners raised constructions under the orders of this Court, above reproduced and were allowed at their own risk and cost which did not create any right. The basis on which the "No Objection Certificate" was cancelled by the District Magistrate also cannot be brushed aside, without undertaking the exercise of recording of evidence. For instance dispute regarding installation of petrol pump on a green belt or out side the same, can only be settled after proper investigation. Similarly, restriction of distance between two petrol pumps is a matter requiring determination after site inspection.
WASA authorities who are controlling the berms of the drainage where they have proposed to set up nurseries, have a just cause in their favour that this petrol pump obstructs the refused and rain water. Be that as it may, the N.O.C. Was revoked within the lawful jurisdiction of the District Magistrate, which is not shown to have been exercised arbitrarily/fancifully, no fresh lease, after expiry of original period of lease, was executed or extended and the lease money accepted by the Deputy Commissioner for a period of four years though unauthorized, has already expired. The petitioner is left with no right to maintain these petitions.
10. For what has been discussed above, I am constrained to hold that all these petitions have no substance and the same having no merit in those are dismissed, leaving the parties to bear their own costs. Petitioners are however, granted two months time to remove their constructions/ fixtures.