' NAZIM HUSSAIN SIDDIQUI, J.--- This judgment will dispose of Constitutional Petitions Nos.1771-L, 1772-L and 1969-L of 2000, in which common questions are involved. The petitioners seek leave to appeal, under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973, against the judgment, dated 13-6-2000 of Lahore High Court, Multan Bench, passed in Writ Petition No,4004 of 1995.
2. In Petition No,1969 of 2000, the Member (Colonies) Board of Revenue Punjab and the Province of Punjab through District Sahiwal, in C.P. No,1771-L of 2000 Muhammad Anwar and 53 others, and in C.P. No,1772-L of 2000 aforesaid Muhammad Anwar alone, are the petitioners.
3. The Municipal Committee, Sahiwal (hereinafter referred to as Municipal Committee) was the petitioner before High Court in Petition No,4004 of 1995, and the petitioners of C.Ps. Nos.1771-L and 1772-L were the respondents. It is the case of Municipal Committee that having removed the encroachers after prolong litigation, it had constructed 60 single and double shops in Khasra No,5072 and on a vacant portion of watercourse in Khasra No,3995, situated on Jinnah Road, Sahiwal and the complex so constructed was named as "Jinnah Shopping Center". It was built at a cost of Rs,15,43,023 and was completed in the year 1982. Thereafter, Municipal Committee rented out above shops through open auction which took place on 29-5-1982. Successful bidders signed regular agreements in favor of the Municipal Committee and took possession of the shops as tenants. The lessees deposited the security amount as per terms of the agreement. It is the case of the Municipal Committee that the lessees paid the rent, with agreed annual enhancement, for a period of about 8 years.
4. In the year 1990, some of the lessees along with some sublettees of original lessees (petitioners of C.P. No,1771-L of 2000), who were introduced without consent of the Municipal Committee, approached the Board of Revenue for transfer of property rights in their favor in respect of the shops which were in their possession. On such move, the Board of Revenue called for report from Deputy Commissioner, Sahiwal, who reported against them (lessees) and stated that the Municipal Committee should move for ex post facto approval, qua the construction raised by it on the land owned by the Provincial Government. It is significant to mention here, that all public streets and bazaars within limits of Municipal Committee, are the properties of the Provincial Government and vest in the Municipal Committee for maintenance, management and administration. It is alleged that the Municipal Committee sought permission from Deputy Commissioner/ District Collector, Sahiwal to use manage the land in question and after permission was granted said shops were constructed.
5. It appears, that the petitioners of C.P. No,1771-L of 2000 filed the Writ Petition No,3159 of 1991 before High Court, seeking a prohibitory order against their eviction. It was dismissed on the ground that the petitioners being admittedly lessees could neither deny the title of the lessor nor stop the payment of rent.
6. Above order was, challenged before Division Bench of High Court through Intra-Court Appeal No,105 of 1993. Vide judgment dated 27-11-1993, partial relief was granted to those petitioners to the extent that Municipal Committee was directed not to interfere in their possession or to take any action for their eviction, except in accordance with law.
7. Thereafter, the Municipal Committee approached the Provincial Government for purchase of said land and the Deputy Commissioner/ District Collector had recommended its case. It is alleged that the petitioners, instead of assailing the order of District Collector, dated 8-9-1991, filed a time- barred revision on 1-12-1993 before the Member (Colonies), Board of Revenue.
8. Learned Member sought comments of the Deputy Commissioner through letter, dated 27-12- 1994, and the latter again recommended that said land be sold to the Municipal Committee.
Learned Member, Board of Revenue, however, did not agree with above recommendations and in his order dated 9-2-1995, observed that the lessees/tenants had prior right to purchase said land on payment of current market price, plus 10 per cent surcharge. He directed that a case for sale by private treaty in favor of the occupants/petitioners be prepared on executive side and its summary for approval be submitted to the then Chief Minister. The Municipal Committee challenged the above order through C.P. No,4004 of 1995.
9. The petitioners resisted the claim of the Municipal Committee and raised number of legal objections against the maintainability of the petition. It was contended that Municipal Committee had approached the Court without exhausting alternate remedies and that it had not come the Court with clean hands. It was also contended that the Municipal Committee had constructed those shops by the funds, which were provided by the petitioners. A plea was also taken that, under section 10(3) of Colonization Act, 1912, that District Collector was not competent to transfer any property in favor of any person without approval of the Provincial Government. It was, however, admitted by the petitioners that they had paid rent to the Municipal Committee for some time, but discontinued to do so since 9-2-1995.
10. During the pendency of petition before High Court, number of other tenants of the Municipal Committee in other shops located at different places also filed the Petitions Nos.10669 of 1995, 4878 of 1995, 4190 of 1995 and 7984 of 1997 claiming that their respective shops be transferred to them by private treaty, as was recommended by learned Member, Board of Revenue in the order, dated 9-2-1995. All these petitions were dismissed with special costs of Rs,5,000 each.
11. Learned High Court having taken into consideration the case-law cited by the parties, and the respective contentions allowed the petition of the Municipal Committee and made pertinent observations some of which are as follows:-- "The impugned order as we will see in the following parts of this order is not a routine order passed by the Board of Revenue in the usual discharge of its function as the highest authority on the revenue side. The exercise of revisional jurisdiction on the basis of a report appears clearly out of context."
' Another observation reads as under:-- "There is sufficient material on record to show that the impugned order was passed in utter disregard of the declared policy of the Board of Revenue itself. One of such policies was circulated through a letter, dated 31-3-1986 whereby all the Commissioners/Deputy Commissioners in the Province of the Punjab were directed not to entertain or process any proposal about the sale of State land except to Government/semi Government departments and local bodies."
' Learned High Court also held the following:-- "The impugned order is certainly a mentionable example of abuse of discretion and authority. The sale of government land by private treaty almost invariably stinks. In this case it was all the more colourful when an order was being passed on the judicial side in exercise of revisional jurisdiction when there was no order of the thrum below which was to be revised."
' It was also observed that:-- "The learned Member did not mention any reason muchless to say of a legally, acceptable reason to allow sale by private treaty. It is also not clear as to how the learned Member proceeded to make direction for sale by private treaty in respect of land when it was admittedly under the construction raised by the municipality. Findings of fact at the level of the Board and that too against the recommendations of the supporting Revenue Authorities, the report of the District Collector in this case dated 2-4-1991 per se gives a bad taste in the mouth."
' At another place in the judgment following was observed:-- "I will refrain from making any further observation as I am told that the Government after the retirement of the learned member passing the impugned order issued a direction recalling or otherwise making ineffective all the orders issued by him during the last days of his in the office."
12. Learned High Court also held that the request of the Municipal Committee for transfer of said land shall be deemed pending and will be decided in accordance with law under the latest policy of the Government on the subject.
' It is contended on behalf of the petitioners of C.Ps. No,1771 and 1772 of 2000 that learned High Court has failed to appreciate the facts in their true perspective and reached wrong conclusion. Learned counsel argued that the land belonged to the Board of Revenue and it had power of its alienation in any manner it deemed fit. Also, it has been argued that learned High Court failed to appreciate that the Municipal Committee, without being owner of the land, constructed shops thereon and its status with reference to said land was that of a trespasser.
13. In C.P. No,1969-L of 2000 it is contended that the property in dispute was handed over to the Municipal Committee for control, management and administration and being so it was absolutely unjustified on its part to charge rent from the occupants, by misrepresenting itself to be the owner thereof. Further, it has been submitted that the Board of Revenue, being its owner no embargo could be placed on its right to alienate said land to a third person in any manner it considered proper.
14. A close scrutiny of the facts reveals that before taking over said land the Municipal Committee took necessary permission from the District Collector, which was granted. Thereafter, the shops were constructed. The petitioners of C.Ps. Nos.1771 and 1772 of 2000 took part in auction proceedings and executed necessary rent agreements in favor of the Municipal Committee. For all practical purposes, they were tenants of the Municipal Committee and could not set up hostile claim against its right. The dispute, if any, was between the Municipal Committee and the Board of Revenue. The petitioners had no locus standi to approach the Board of Revenue for transfer of said land/shop as the shops were constructed by the Municipal Committee and belonged to A it. Prima facie, it was an irregularity for which the Revenue Authorities at the District level were partly responsible. Besides, during pendency of the petition, the Provincial Government supported the Municipal Committee and also submitted various reports to the Board of Revenue in that regard.
Another significant fact to be noted is that the Provincial Government never raised any objection against the occupation of land by the Municipal Committee or on raising construction thereon and the issue only cropped up at the instance of the petitioners.
15. We are of the view that the impugned judgment is perfectly correct and no exception can be taken to it. Accordingly, leave to appeal is refused and the petitions are dismissed.