'JAVED IQBAL, J.--- This appeal with leave of the Court is directed against the judgment dated 18-3- 1996 passed by learned High Court of Balochistan whereby writ petition preferred on behalf of respondents has been accepted and the order, dated 23-2-1995 passed by learned Senior Member, Board of Revenue, Balochistan, has been set aside being illegal and transfer order, dated 15-7-1991 regarding plot in question in favor of respondents has been kept intact.
2. The leave granting order dated 24-9-1998 is reproduced herein below to appreciate the legal and actual aspects of the controversy:-- "After hearing the learned counsel for both sides at length, we are inclined to grant leave to appeal in this case to consider the following crucial questions to determine the rights of the parties in respect of the disputed property:--
(1) What is the effect of MLO 16 on the legal character of the lease in favor of the respondents assuming that it had done away with the leasehold rights of the respondents, then in the said event, the further grant of lease or sale of this right was to be determined according to the new policy?
(2) What is the legal character of the new policy framed to govern such leases/sales? If it is held that the MLO had in fact abolished the leasehold rights of the respondents, then were they entitled to purchase this land from the Government of Balochistan though not being in occupation of the property?
(3) One of the consequences of MLO was that the authorities had framed a new policy under which only the occupants, who were in physical possession, were entitled to the lease or sale. That being so had not a valuable right accrued in favor of the petitioners to claim the lease or sale of the disputed property, being in actual physical possession on the basis of the aforesaid policy?
(4) Initially, the disputed land vested in the Municipal Corporation, Quetta but subsequently, it became property of the Provincial Government, which sold the same in favor of the respondents.
Prima facie, the sale being in. Violation of the policy framed, could not have deprived the petitioners. To claim its purchase being in physical possession.
' Accordingly, leave to appeal is granted to consider, inter alia, the above questions."
3. This case has got a chequered history. The respondents filed Constitutional petition whereby order, dated 5-7-1992 passed by the Senior Member, Board of Revenue, cancelling the order dated 15-7-1991 whereby a plot measuring 600 sq. Ft located at the berm of Habib Nala Mission Road, Quetta, was sold to the respondents at the rate of Rs,2,500 per sq. Ft. At the total cost of 15,00,000 on the representation dated 16-12-1991 made by Ghiasuddin (appellant) being an occupant of the plot in question. The case was remanded by means of order, dated 15-3-1993 to the Member, Board of Revenue to decide the controversy in accordance with law and observations made therein. The order, dated 15-3-1993 was challenged by both the parties being dissatisfied by means of civil petitions for leave to Appeal bearing Nos.30-Q and 31-Q of 1993 before this Court which were rejected by the Court on 9-9-1993 with the following observations:- "We have heard at length Mr. Basharatullah and Mr. Aslam Chishti learned counsel for the parties and we are inclined to agree with the High Court that the case involved disputed questions of fact, which inter alia include the question as to who was in possession of the land, who raised the construction thereon, in what capacity the petitioners in the second petition occupied the land with the structure thereon. The above questions cannot be resolved in exercise of Constitutional jurisdiction. The same are pre-eminently suitable to be adjudicated upon by respondent No,1 .
Leave is accordingly refused."
' Purusant to remand order, dated 15-3-1993, the learned Member Board of Revenue proceeded with the matter and directed the parties to produce evidence. Another controversy cropped up qua the manner in which the parties were required to produce their evidence. No evidence whatsoever was led by the parties to substantiate their claims. In view of the judgment of this Court dated 9-9-1993, the case was transferred to learned Senior Member, Board of Revenue who vide order, dated 7-2-1994, directed the parties to file written arguments by 5-3-1994. However, on 23-2- 1995 the transfer of plot which was sold to respondents was cancelled. The order, dated 15-7-1991 was challenged by way of Writ Petition bearing No,93 of 1995 which has been accepted, hence this appeal.
4.Mr. Fakharuddin G. Ebrahim, learned Advocate Supreme Court appeared on behalf of appellants and urged vehemently that the legal and factual aspects of the controversy have not been appreciated in its true perspective, which resulted in serious miscarriage of justice. It is next contended that the shop in question was a part of Regularization Policy which could not have been excluded from its domain and exclusion whereof by the High Court is based on conjectural presumptions having no value in the eye of law and on this score alone the judgment impugned is liable to be set aside. It is also argued that the judgment impugned is in contradiction of the earlier order, dated 5-3-1993 whereby the case was remanded and the learned High Court opined that the Regularization Policy was not applicable to the plot in question then what was the necessity and justification to pass the remand order. It is urged with vehemence that the word "him" as used in para. 5(c) of the Regularization Policy has been misconstrued and misinterpreted and the learned High Court erred while holding that the word "him" refers to the respondent (Ghulam Mohyuddin) and not the appellant (Ghiasuddin). h is also argued that the Regularization Policy was notified by the Board of Revenue vide Notification No,125-8/91-Rev. On 4-6-1992 wherein para. 5(c) and para. 6 of the Policy were not mentioned of the simple reason that only the salient features of the Regularization Policy were enumerated in the Notification. It is pointed out that even for the sake of arguments, if it is admitted that para. 5(c) and para. 6 of the Regularization Policy were not incorporated in the said Notification; it would not amount to the non-existence of para. 5(c) and para. 6 of the Regularization Policy which was formulated, and approved by the competent authority on 18-6-1991. It is further pointed out that the Policy was approved on 18-6-1991 and regularization of the plot in favor of respondents was made on 15-7-1991. It is contended that the real nature of dispute could not be appreciated by the learned High Court as the entire controversy revolved around the allotment of shop situated on the Government land under the Regularization Policy, dated 18-6-1991 on the basis of occupation and the previous round of litigation specially the proceedings conducted in 1954 to decide the question of occupation in favor of the respondents should have not been relied upon and considered as has been done by the learned High Court. It is argued with vehemence that after resumption of shop in question under MLO No, 16/46 on 11-5- 1985, the question of ownership was buried forever having no legal consequences whatsoever.
Besides that it is pointed out that the respondents admitted before the High Court regarding the occupation on the disputed shop since 1954. In this regard para. 7 of the memo. Of petition preferred on behalf of respondents has been referred. It is next contended that conclusion of the learned High Court regarding occupation of the shop by the appellants due to their induction by the respondents has no nexus whatsoever with the evidence which has come on record. It is argued that remand order passed by the High Court is demonstrative of the fact that sufficient material was lacking to draw any conclusion, which has been drawn subsequently without advancing any cogent or concrete reason. According to Mr. Fakharuddin G. Ebrahim, learned Advocate Supreme Court, the only appropriate course for the High Court was to dismiss the petition as no relief could have been granted.
5. Mr. Basharatullah, learned Senior Advocate Supreme Court appeared on behalf of respondents and supported the judgment impugned for the reasons enumerated therein with further submissions that the plot in question was auctioned in their favor in the year 1959 when the appellants were never in the field. It is pointed out that the shop was constructed on the plot in question by the .Respondents pursuant to permission granted by Municipal Engineer. Quetta Municipality by means of Building Permit No,3416-B, dated 9-7-1952. It is also pointed' out by Mr. Basharatullah, learned Advocate. Supreme Court on behalf of respondents that a dispute accrued regarding construction of shop on the plot in question between the Quetta Municipality and that of respondents which was decided in their favor by learned subordinate Judge, Quetta on 29-9-1955 (Civil Suit No,187/54) and the appeal filed by the Quetta Municipal Committee was also dismissed by the learned District Judge, Quetta vide judgment, dated 12-12-1995 which is indicative of the fact that the ownership of the shop constructed on the plot in question pertained to the respondents. It is argued that the lease deed was executed in favor of respondents on 30-6-1976 between the Collector, Quetta and the respondents whereby the plot in question was leased out in favor of respondents for a period of 99 years at the rate of Rs,5 per 100 sq. Ft. Per annum. The lease deed was commenced w,e,f, 13-11-1995 and construction was already completed in 1954. It is pointed out that the confusion if any was clarified by the learned Member-II, Board of Revenue, Balochistan vide order, dated 7-5-1975. It is admitted by Mr. Basharatullah, learned Advocate Supreme Court on behalf of respondents that the plot in question was resumed under M.L.O. No,16 but subsequently, it was sold to respondents by means of Order bearing No,125-8/91-Rev. By order of the Member Board of Revenue, Balochistan at the cost of Rs,2500 per sq. Ft. And total sum of Rs,15,00,000 was deposited by respondents and consequently mutation was restored in their favor on 17-12-1991. Mr. Basharatullah, learned Advocate Supreme Court on behalf of respondents has contended with vehemence that the Member Board of Revenue has no authority to cancel the plot in question and transfer the same along with structure as ownership of the plot in question was devolved upon the respondents after having purchased the plot in question against the consideration of Rs,15,00,000.
In order to substantiate his esteemed views, the learned Advocate Supreme Court on behalf of respondents has placed reliance on the case of "Madrissa Darul Uloom v. Additional District Judge PLD 1992 SC 401.
6. We have carefully examined the respective contentions as agitated on behalf of the parties in the light of relevant provisions of law and record of the case. We have scanned the entire evidence with the eminent assistance of the learned counsel. We have also perused the judgment passed by learned Senior Member, Board of Revenue as well as judgment impugned. After having gone through the entire record, it appears that the claim of appellants mainly hinges in the policy formulated by the Government of Balochistan in this regard. Let we mention here at this juncture that formulation of the policy and its approval as highlighted comprehensively by Mr. Fakharuddin G. Ebrahim, learned Advocate Supreme Court on behalf of appellants would have no material bearing on the fate of case. The important question would be as to whether the Policy relied upon has been implemented in toto and if so, on which specific date. The implementation of such Policy .Could only be made by means of. Notification, which was admittedly issued on 4-6-1992 concerning disposal of the Government property located at the berm of Habib Nala, Mission Road, Quetta. The salient features of the policy formulated on 13-4-1991 are as under:--- "(4) While recommending regularization following principles have been adopted.
(a) that not more than one shop is regularized in favor of a person. (A fresh survey has been conducted with the help of the D.C. To ascertain the present occupants);
(b) regularization should be in favor of the occupants;
(c) although the encroachment has continued for several decades and rent should also have been charged, only the prevailing market price may be charged;
(d) the price assessed for regularization should approximately to the prevailing market price as ascertained on the basis of 3 years average of transactions; and
(e) the price will be charged in lump sum and will be payable within 120 days from the date of its receipt by the occupant;
(f) in case someone fails to make the payment within the given time the offer of regularization will be cancelled and orders issued for removal of encroachment. For as long as encroachment remains in place he shall be liable to pay a monthly rent of Rs,15 per Sq. Ft.
(5) Progressive price sale may be adopted so as to hold little guy e.g.
(a) 80 shops at Khushi Ram Road
(i) 17 plots upto 100 sq. Ft. Rs,250 per sq. Ft.
(ii) 40 plots from 101 to 150 Rs,300 per sq. Ft.
(iii) 14 plots from 151 to 290 Rs,350 per sq. Ft.
(iv) 4 plots from 201 onward Rs:400 per sq. Ft.
(b) 8 shops at Mission Road
(i) for plots up to 100 sq. Ft. Rs,1500 per sq. Ft.
(ii) for plots from 101 to 200 sq. Ft. Rs,1600 per sq. Ft.
(iii) for plots from 200 sq. Ft. Rs,2000 per square ft. And above.
(c) the only remaining shop not covered under (a) and (b) of this para. Is that of one Qudussi General Store. Since this shop is situated in a busy commercial area, it commands much higher price. It may, therefore, be transferred to him at Rs,2500 per sq. Ft.
(6) It is suggested that the transfer of land to the present occupants as per list, dated 7-4-1991 (F/D) signed by Tehsildar, Quetta and forwarded by D.C. Quetta may be regularized.
13-4-1991 (Sd.) Syed Shahid Hussain) Senior Member Revenue Minister U.0 No, Dated 11-4-1991."
' The above mentioned Policy was implemented by means of Notification No,125-8/91-Rev. Dated 4-6-1992 by the Board of Revenue, which is demonstrative of the fact that the shop in question was not included in it and hence the question of its transfer to the "occupant" (appellants) does not arise. Had this been the intention of the Board of Revenue, there would have been no justification to use the word "him" and the word "occupant" could have been used very conveniently as it was used for 80 shops, located at Khushi Ram Road, Quetta, and 8 shops at Mission Road, Quetta. It was made abundant clear in para. 5(c) of the Policy that it would not be applicable to Qudussi General Store i,e, the property in dispute. Even for the sake of arguments, if it is admitted that the summary to get the Regularization Policy approved was prepared on 13-4-1991 but how it could be made applicable with retrospective effect as admittedly it was enforced on 4-6-1992 by means of Notification No,125-8/91-Rev., dated 4-6-1992 whereas the property in dispute was already transferred to respondents on 15-7-1991. Mr. Fakharuddin G. Ebrahim, learned Advocate Supreme Court on behalf of appellants could not furnish satisfactory explanation that as to how retrospective effect could be given to the Policy which was admittedly notified on 4-6-1992. Besides that the Member Board of Revenue had conceded in the earlier round of litigation' in his counter- affidavit that the Notification, dated 4-6-1992 was not applicable qua the property in dispute. How a contradictory stance that too without any legal foundation can be taken now? The Policy itself had no legal sanctity prior to the issuance of the notification, dated 4-6-1992 through which it was not enforced excluding the property in question. It would be an exercise in futility to examine as to whether the property in question was included in the policy or otherwise because we are mainly concerned with the part of policy which was enforced by means of Notification, dated 4-6-1992.
' The policy in fact is a mechanism evolved to face, check and resolve a particular situation whereas the notification is an instrument through which it is enforced. It is for the competent authority to choose as to which part of the Policy or entire policy by excluding certain principles incorporated therein, is required to be implemented and the discretion so exercised cannot be questioned. We may make it clear that "policy" and "notification" are not interchangeable or synonymoyus terms having its own peculiar characteristic, import and significance. The expression "policy", "policy of law" and "public policy" have been described in Corpus Juris Secundum by Francis, J. Ludes, Volume LXXII as follows:-- ' "Policy'. The word 'policy' is defined as meaning a settled or definite course or method adopted by a Government, institution, body or individual.
' As applied to a rule of law, 'policy' refers to its probable effect, tendency, or object, considered with respect to the social or political well-being of a State."
' "Policy of the law. The term is difficult to define. It has been considered to refer to the purpose and spirit of the substantive laws of a State, whether such laws be found in the Constitution and statutes or in judicial records. The term has been said to be synonymous with public policy."
' "Public Policy. The term public policy is perhaps the most expansive and widely comprehensive phrase known to the law. It has been said that the doctrine of public policy originated in England in the early part of the Fifteenth Century, and that the principle of public policy owes its existence to the very sources from which the common law is supplied. The phrase is used in several senses, and it may mean the prevalent notions of justice and general fundamental conceptions of right and wrong and it may mean both. It 'is a vague, indefinite, and nebulous term."
"It is evident that public policy is a relative term and sometime lacks in precision and oftenly is used indistinctly and there must be pragmatic approach for understanding its real meaning in the light of the circumstances surrounding the particular transaction. When a policy or direction is given for guidance to the officers of a department without any statutory backing, no claim of vested right can be based on such policy or direction." Shafiq Ahmed v. Federation of Pakistan 1997 CLC 697. The Regularization Policy has been discussed in view of what has been stated above and we are of the opinion that no legal right whatsoever was conferred upon the appellants by virtue of the Regularization Policy reproduced in the preceding paragraph to retain the shop in question for an indefinite period on account of occupation or C physical possession.
7. It also transpired from scrutiny of record that the case of appellants mainly hinges upon representation made by them on 16-12-1991 that the property in question be transferred to them being occupants in oblivion of the fact that they were occupants of the property, ownership whereof was never vested in the Government, hence the question of its transfer does not arise because it was not available property which could have been transferred to the appellants merely on the basis of representation and without showing any legal right. A line of distinction is to be drawn between encroachers who constructed shops on the berm of Habib Nala, Mission Road, Quetta and made hectic efforts to convert their unlawful possession to that of law and the appellants who were admittedly not encroachers and occupying the shop constructed on the plot in question which pertained to respondents, hence, no benefit could be elicited from the Regularization Policy formulated by the Government as reproduced above excluding the Qudussi General Store i,e, the disputed property, from its operation. No evidence worth the name could be produced by the appellants to substantiate their claim. The policy even otherwise cannot be invoked as it was formulated for a group of encroachers and the appellants does not fall within that category. For all the practical purposes , the appellants emerged on the scene on 16-12-1991 when at first occasion, an application was moved for the transfer of property in question. On the other hand, the respondents were in possession of the plot in question since 1951 on which the shop was constructed, which is also supported by the judgment, dated 29-9-1955 whereby it was held that the construction was made in accordance with the Municipal Code of Building and the Quetta Municipal Committee had no right to demolish it. It is worth-mentioning that the said judgment was upheld by the District Judge on 12-12-1955. It is to be noted that the registered lease deed dated 30-1-1976 was also executed between the Collector, Quetta and the respondents and no claim or objection whatsoever was made by the appellants regarding execution of lease deed between the Collector, Quetta and the respondents for 99 years. The appellants woke up from a deep slumber after about four decades probably due to alarming increase in the potential value of the land and exorbitant rise in the market price but it was too late to launch such a campaign on hypertechnical grounds and wishful thinking. The appellants had absolutely no locus standi to claim for the transfer of plot in question which was already transferred- in favor of respondents on 15-7-1991 in lieu of Rs,15, 00,000 duly received by the Member Board of Revenue on behalf of Government. The appellants have failed miserably to substantiate their claim by adducing any worthy of credence oral/documentary evidence. No legal right was ever accrued in favor of appellants and hence the question of its infringement does not arise. How the legal rights accrued in favor of respondents could be extinguished merely on the ground that the land was resumed under M.L.O. No,16 and even such resumption does not confer any right upon the appellants, who have no leg to stand. The cancellation of plot in question under M.L.O. No,16 would not confer automatically the right of transfer or ownership of the plot in question upon the appellants. Nothing contrary has come on record to show that the plot in question was never auctioned and purchased by late Haji Ali Bahadur (father of respondents Nos.1-3) who was called upon on 18-6- 1992 by the Municipal Committee, Quetta to make the payment of Municipal Fee and needful was done on 21-6-1952. At first instance the plot in question was leased out to the respondents for a period of thirty years and registered lease deed was executed on 13-5-1954. The plan for construction was got sanctioned by the Municipal Committee, Quetta and the shop was constructed having Municipal No,7-18/129 by the appellants. The relevant municipal record, such as, demarcation, dated 19-8-1954 and cards regarding completion of different phases of the construction between 20-8-1954 to 22-9-1954 lend full support to the claim of appellants who had been admittedly making payment of the ground rent and the conservancy tax etc.
8. In view of what has been stated above, it can be inferred safely that the word "him" as used in the summary was surely meant for the respondent (Ghulam Mohyuddin). No doubt that the plot in question was cancelled pursuant to M.L.O. No,16 but at this belated stage it would be of no use to discuss the question as to whether the plot in question could have been cancelled under M.L.O.
No,16 or otherwise in view of the subsequent developments which resulted in the sale of plot in question to the respondents by the Member, Board of Revenue vide order, dated 15-7-1991 in a sum of Rs,15,00,000 and after its payment the plot in question was mutated in favor of the respondents on 17-12-991 by means of mutation entry. After the said transaction the plea that the plot in question was resumed pursuant to M.L.O. No,16 would have no substantial bearing on merits of the case as it hardly render any assistance to the case of appellants. It is worth-mentioning that as per order of the Member Board of Revenue, offer was given to the respondents to purchase the plot in question at the prevailing market rate of Rs,25 per sq. Ft. The Martial Law Administrator had accepted the appeal of the respondents by means of Order No,0301/16(Legal) dated 18-5-1978 pursuant to which the respondents accepted the offer made by the Member Board of Revenue to purchase the plot in question at the rate of Rs,25 per sq. Ft. The respondents were allowed to purchase the plot against payment of Rs,16,800 which was deposited in the State Bank of Pakistan on 5-8-1978 and the plot in question was mutated in favor of respondents vide Mutation No,767 which was got attested on 12-9-1978.
9. Mr. Fakharuddin G. Ebrahim, learned Advocate Supreme Court on behalf of appellants has stressed time and again that the shop in question was in the possession/occupation of respondents by ignoring the fact that merely possession or occupation do not constitute a legal- right to retain the possession or occupation of the shop in question for an indefinite period. The possession of respondents was nothing more but physical occupation without any legal basis.
There is no cavil with the proposition that "possession originally expresses the simple notion of a physical capacity to deal with a thing as we like to the exclusion of everyone else. The primary and main object of ownership is the protection of this physical capacity and as pointed out by Savigny, if this physical condition had alone to, be considered all that could be said upon possession from juristical point of view would be contained in the following sentences:--- ' The owner of a thing has the right to possess it. Everyone has the same right to whom the owner has given the possession. No one else has that right of possession.'
"The legal notion of possession however is not confined to this simple physical condition.
Possession is treated in law, not only as a physical condition which is protected by ownership but as a right in itself. From possession under certain conditions, important legal consequences are derived; in advanced systems of law the right of possession is frequently separated from the right of ownership. Moreover, the possession with which the law thus deals is not that simple physical condition described above, and to which for the sake of distinction, we may give the name of Detention. It is true that the physical element is never altogether lost sight of; on the contrary, a physical element of some kind or other, is essentially necessary to possession in its widest legal sense."
' The learned author has further analysed the concept of possession and observed as follows:-- ' "Upon analysis, therefore, the idea of possession resolves itself into two elements; physical and mental- corpus and animus. Possession in any sense of the term must imply, first, some actual power over the object possessed and secondly, some amount of will to avail oneself of that power.
The mind must accompany the act, the will must realize or embody itself in an external fact or group of facts."
' The books also distinguish between possession in fact and possession in law. Another division of the concept of possession is between mediate possession and immediate possession. This has been explained lucidly in Salmond on Jurisprudence (supra) as under:--- ' "In law one person may possess a thing for and on account of someone else. In such a case the latter is in possession by the agency of him who so holds the thing on his behalf. The possession thus held by one man through another may be termed mediate, while that which is acquired or retained directly or personally may be distinguished as immediate or direct. If I go myself to purchase a book, I acquire direct possession of it; but if I send my servant to buy it for me, I acquire mediate possession of it through him, until he has brought it to me when my possession becomes immediate.
' Of mediate possession there are three kinds. The first is that which I acquire through an agent or servant; that is to Say, through someone who holds solely on my account and claims no interest of his own. In such a case I undoubtedly acquire or retain possession; as, for example, when I allow my servant to use my tools in his work, or when I send him to buy or borrow a chattel for me, or when I deposit goods with a warehouseman who holds them on my account, or when I send my boots to a shoemaker to be repaired. In all such cases, though the immediate possession is in the servant, warehouseman, or artisan, the mediate possession is in me; for the immediate possession is held on my account. The second kind of mediate possession is that, in which the direct possession is in one who holds both on my account and on his own, but who recognizes my superior right to obtain from him the direct possession whenever I choose to demand it. That is to say, it is the case of a borrower or tenant-at-will. I do not lose possession of a thing because I have lent it to someone who acknowledges my title to it and is prepared to return it to. Me on demand, and who in the meantime holds it and looks after it on my behalf. There is no difference in this respect between entrusting a thing to a servant or agent and entrusting it to a borrower. Through the one, as well as through the other, I retain as regards all other persons a due security for the use and enjoyment of my property. I myself possess whatever is possessed for me on those terms by another.
' There is yet a third form of mediate possession, respecting which more doubt may exist, but which must be recognized by sound theory as true possession. It is the case in which the immediate possession is in a person who claims it for himself until some time has elapsed or some condition has been fulfilled, but who acknowledges the title of another for whom he holds the thing, and to whom he is prepared to deliver it when his own temporary claim has come to an end; as for example when I lend a chattel to another for a fixed time, or deliver it as a pledge to be returned on the payment of a debt. Even in such a case I retain possession of the thing, so far as third persons are concerned." Muhammad Rifatullah Alvi v. Imran Ansari PLD 1990 SC 369.
' The above analysis qua the concept of possession would indicate that the possession itself is not equated to that of legal right on the basis whereof ownership could be claimed. As discussed hereinabove, sufficient evidence has come on record, on the basis whereof it could be inferred safely that the plot in question was leased out/sold in favor of respondents by whom the shop in question was constructed which cannot be retained by the appellants merely on the ground that once upon a time, a representation was made by them to allot the plot in question in their favor which could not be finalized.
10. It is amazing that during more than three decades the appellants were never remained in picture when the plot in question was either sold or leased out to the respondents who alone have been fighting to get the plot in question transferred in their favor. The appellants have failed miserably to substantiate their claim by producing any evidence. The judgment impugned being well-based does not warrant interference. The appeal being meritless is dismissed. The parties are left to bear their own costs.