This case was still at the stage of preliminary hearing when on behalf of all the respondents learned counsel have entered appearance and they were allowed to state any fact in the case and refer any authority on the points involved for decision of this case. The petitioners' counsel was allowed to present the case at length. Even the documents submitted by the petitioners at late stage were entertained and placed on the file.
2. The two petitioners are the encroachers of a site located in the western corner of the public park provided in the Scheme known as Cattle Fair Ground Scheme, Lyallpur, commonly called the Jinnah Colony, Faisalabad. The background against which the Scheme was sanctioned by the Government is explained in the memorandum dated 7-1-1952 as : "Subject : Town Planning Scheme for the area known as Cattle Fair Ground at Lyallpur.
' Reference your endorsement No, 907-163/20811, dated the 1st December 1951 on this subject.
(2) In February 1951, a High Powered Committee was set up by Government for the purpose of framing schemes for the utilization of funds to be allocated to the Government by the Pakistan Government out of the Muhajir Tax. This Committee adopted the Cattle Fair Ground Scheme and forwarded it to the Pakistan Government for approval. That Government laid down certain principles which were to be followed in the framing of the schemes to be financed from the Muhajir Tax. The scheme has accordingly been revised by the Provincial Town Planner, vide enclosed copy of plan No, P. T. P./535/51. The Municipal Committee, Lyallpur may kindly be asked to adopt this scheme with least possible delay as Government intends to take up the scheme immediately. As the scheme will be executed by the Punjab P. W. D. Buildings and Roads Branch and transfer of land falling under streets and open spaces, which may place later on will be as a result of an agreement between the Punjab Government and Municipal Committee. The Committee, may therefore also please be asked to delete sub-clause III (ii) of the schedule of clauses and score out the words "to be surrendered to the Committee". Areas reserved for schools, mosque and Health Centre are not to be transferred to the Committee."
' As a first step to implement the Scheme Notification was issued in the year 1952, as "In exercise of the powers conferred by section 3(18) (b) of the Punjab Municipal Act, 1911, the Governor of the Punjab is pleased to notify that the area of land comprised in Squares Nos. 69, 70, 71 and 72 known as Cattle Fair Ground (JINNA HABAD) boundaries of which are described in the schedule annexed hereto and situated within municipal limits of Lyallpur shall be deemed to be an un-built area. {{TABLE}} SCHEDULE North East. Model Town-C and Christian Graveyard.
North West. Siddique-abad. South West. Farid Gunj.
South East. Government College and Mohallah Ghulambaripura." {{TABLE}} ' The above step was followed by the issuance of another Notification in 1952 as : "In exercise of the powers conferred by subsection (3) of section 192 of the Punjab Municipal Act, 1911, the Governor of the Punjab is pleased to sanction the town planning scheme framed by the Municipal Committee Lyallpur for the area known as Cattle Fair Ground within the Municipality of Lyallpur as described in the attached Schedule of clauses and the drawing No, P. T. P./442/50. No, 2441-52/1763C & T dated Lahore the 2nd June 1952."
2. The Controlling Agency in relation to the Scheme sanctioned by the Government originally was the Local Government Department which had been replaced, after certain changes in the set up by the present Housing and Physical Planning Department. No doubt the Municipal Committee had remained associated with the framing of the Scheme from the initial stages but in the matter of control the orders had always been passed by the Government. Learned counsel for the petitioners has referred to an instance of establishing a Complaint Centre by the WAPDA in the public park reserved in the Scheme for which permission was sought from the Municipal Committee. I made a query from the learned counsel whether he can quote any instance to show that any plot of the Scheme had been ever sold by the Municipal Committee. His reply was in the negative. The Municipal Committee had the limited authority given by the Controlling Agency for the purposes of maintenance of the Scheme after its completion primarily for the benefit and good of the persons settled on the Scheme. This authority is explained in one of the directives issued as late as 12/13-6- 1960, as : ' Subject : Transfer of Satellite Towns Schemes to the Respective Municipal Committees in W. P. For Maintenance.
' Sir, ' I am directed to state that in supersession of all the previous policies on the subject the following decisions have been taken at a meeting of Secretaries level between Basic Democracies and Local Government and Communications and Works Department :-
(1) Where a Satellite Town is completed, there will be no objection by the Municipal Committee to its taking over. It has, however, been decided that no incomplete scheme shall be taken over by the Municipal Committee. It, was further defined that a 'completed scheme' shall mean a scheme as originally envisaged, without providing additional items.
(2) In respect of fresh schemes, which were defined as schemes completed from 1968 onwards it is laid down that before being handed over, each new scheme may be inspected by an expert Committee to be appointed by the Commissioner of the respective Division. It was further laid down that such committee shall include besides others, a representative of the Municipal Committee and of the Sponsoring Agency each.
(3) The Maintenance of any works, found wanting, in the opinion of the Commissioner, after inspection by the aforesaid Committee, shall not be the responsibility of the Municipal Committee, until funds proportionate to the work yet to be done, are provided by the sponsoring Agency/Government in the C & W Department.
(4) After a discussion of the necessity of executing agreements by the Municipal Committee it has been decided that there is no need of signing such agreements, since maintenance by the Municipal Committees after taking over of the area is any way their responsibility under the various provisions of the Municipal Administration Ordinance, 1960. It has, therefore, been decided that the Municipal Committees are not to be called upon to execute any agreements in this respect.
(5) It was clarified, however, that this does not preclude payment to Municipal Committees due from the Sponsoring Agencies for the works already taken over and that it also does not preclude the settlement of any disputes which should be resolved in the light of the decisions taken at the time of the Municipal Committees having accepted the responsibility of maintenance of previous scheme.
(6) It was decided in supercession of the previous decisions that the Municipal Committee may acquire land for graveyards at the sites selected by the Sponsoring Agency, and may maintain them only if such land falls within Municipal limits.
(7) As already agreed to between the Basic Democracies, Social Welfare and Local Government Department and C & W Department no general exemption from house tax shall be given by the Municipal Committee to any category of houses in the Satellite Towns.
(8) Since the Municipal Committee cannot have two sets of Building Bye-Laws one its own and one prepared by the Sponsoring Agency it was decided in supercession of previous decisions in this respect that the Municipal Committee shall only have its own building Bye-Laws and none others.
2. It is requested that these decisions may kindly be noted for necessary action."
3. The part plan of the Scheme submitted by the, petitioners for showing the location of the site in the public park reserved in the Scheme can be used for holding them as encroachers on the disputed site with no right whatsoever to acquire the ownership of the site by private treaty from the Government. At late stage the petitioners have submitted the Scheme Plan from which it is evident that the public park in the shape of semicircle frontward the commercial buildings is reserved for the benefit and good of the persons settled on the Scheme. In the western corner of the public park the site in dispute is abutting on the commercial and residential roads provided in the scheme. After encroachment on the site by the petitioners in the year 1968 they got a licence of encroachment at Tehbazari rate in the year 1969 from the Municipal Officer, Lyallpur, for the site then measuring 10 x 19 ft. This encroachment was gradually extended by the petitioners. In the first step to 13 x 18 ft. And then to 20 x 19 ft. To the site initially accretion of Thara was made, then khokha was put up and then superstructure raised and got it fitted with Sui Gas and electricity and named it as Cafe Murshid. To strengthen hold on the site the petitioners entered into dispute with the Authorities under the Municipal Administration Ordinance on the question of rate of Tehbazari being charged. Encouraged by other encroachers in the city who gradually succeeded in gaining rights in those sites, the petitioners also submitted an application in the year 1974 to the Board of Revenue for sale of the site by private treaty. The instances of other sites referred to by the learned counsel for the petitioners are of no help to his case which has got its own peculiar facts. The Board of Revenue directed the examination of the petitioners' request and report by the local administration. The Deputy Commissioner recommended the case of the petitioners for sale of the site by private treaty vide memorandum reproduced below : "Subject.-Petition dated 10-3-1974 from Messrs Ghulam Hussain Shah, Ghulam Haider Shah sons of Nemat Ali Shah, residents of Chatriwala Chowk Jinnah Colony, Lyallpur regarding sale of State land Khasra No, 72/74 Khatuni No, 3u10 min measuring 3 marlas 5 sarsahis.
' Reference.-Your memo No, 1230-20 (V)/6618/CA dated 21-5-1974.
' Messrs Ghulam Hussain Shah, Ghulam Haider Shah have applied to the Board of Revenue Punjab for the sale of state land out of Khewat No, 2686/2687 min Khasra No, 72/74 measuring 3 marlas and 54 sarsahis situated in Jinnah Colony, Lyallpur.
' A copy of the petition was sent to Tehsildar, Lyallpur for report about the present petition of the land and also to attach the copies of relevant documents.
' Reports from the field staff/Tehsildar, Lyallpur have been received. The patwari halga has reported that the site applied for is owned by the Provincial Government and the petitioners are occupying the site since last 10 years. They are ticket holders of Municipal Committee, Lyallpur. The Parwana mushtohri-munadi, copies of Shajra, Jamabandi, Khasra girdawari, site plan and average sale price statement in the prescribed proforma have been recorded. They have stated that the shop stands constructed at the site. The petitioners are paying tehbazari fees to the Municipal Committee since 1963 and that the site in question measuring 3 marlas 54 sarsahis may kindly be sold to them at market rates as the Government have already accorded sanction in case of shopkeepers of Railway Road, Circular Road, etc. According to the existing policy of the Government the State land is to be sold by open auction as far as possible but this is generally done when the sale proposal is made for several waste tracts of state land. But in the present case, the entire area of Jinnah Colony stands already occupied by the allottees or proprietors under the Satellite Town Scheme of Urban Rehabilitation Department. This site is situated on a road near the green belt in the centre of Jinnah Colony. The shops situated on Railway Road, Circular Road, etc. Have been sold by the Board of Revenue through sale by private treaty and this case also appears to be of the same nature. The Municipal Committee should not take undue benefit out of the area when it is state land. The Municipal Committee should also be asked to remit the amount of tehbazari fee charged by them illegally and the area may be resumed from their control.
' In the circumstances explained above, it is recommended that the area of 3 marlas and 51- sarsahis described above may kindly be sold after resumption from the control of Lyallpur Municipality @ Rs, 1,000 per marla, plus 10% surcharge for concession of surcharge for sale by private treaty in favour of the sitting persons. Copies of Shajra, Jamabandi, Khasra girdawari, site plan and average sale price statement in the prescribed pro forma are sent herewith for perusal and further necessary action."
' The Commissioner through whom the recommendation had to be routed did not agree with the proposal of the Deputy Commissioner and directed that since the site belonged to the Government should be resumed forthwith from the petitioners vide memorandum, reproduced : "Subject : Petition dated 10-3-1974 from Messrs Ghulam Hussain Shah, Ghulam Haider Shah sons of Nemat Ali Shah, residents of Chatriwala Chowk, Jinnah Colony, Lyallpur Regarding Sale of State Land Khasra No, 72/74 Khatauni No, 3010 MM Measuring 3 marlas 5} sarsahis.
' Reference endorsement No, 703-C-CA/CCIV, dated the 26th June 1974 by the Deputy Commissioner, Lyallpur to your address.
(2) The land comprising Khasra No, 72/74 min, in possession of the applicants, is state owned. The Municipal Committee Lyallpur, was not competent to lease out this piece of land on any terms and conditions. The applicants manoeuvred to get this land in an unauthorised manner. They are unauthorized occupants of the state land. In case they are sold away the aforesaid area, it would mean that the unauthorized occupants, in the long run, gain full benefit of their unlawful possession. The applicants, did not deserve any favourable consideration. In this connection attention is invited to the ruling (W. P. (Rev.)/94/1958) in case Nawab Din v. Muhammad Hussain, whereby the unauthorized occupants are not be given even the lease of state land in their possession. In view of the above circumstances the proposal of the Deputy Commissioner is opposed. It is expedient to resume possession of the land in question forthwith. Further action in the matter will be taken on receipt of final orders, which may please be conveyed at an early date."
' However, the Secretary (Colonies) Board of Revenue again directed the local administration to proceed further with the proposal of sale of the disputed site to the petitioners by private treaty vide reference dated 29-8-1974, reproduced : "Subject : Petition dated 10-3-1973 from Messrs Ghulam Hussain Shah and Ghulam Haider Shah sons of Nemat Ali Shah, residents of Chhatriwala Chowk, Jinnah Colony, Lyallpur, regarding sale of State land Khasra No, 72/74, Khatauni No, 3010 min measuring 3 marlas and 51 sarsahis.
' Reference : Correspondence resting with hour Memorandum No, 123020(T)/3828/CA, dated the 17th July 1974.
' Mr. A. G. Riza, Member (Colonies), Board of Revenue, Punjab. Memorandum : The Board of Revenue, Punjab has observed that if the petitioners Messrs Ghulam Hussain Shah and Ghulam. Haider Shah sons of Nemat Ali Shah, have already been in possession of the site for ten years what is the harm in getting some money for the Government by its sale. The request is reasonable. You are, therefore, requested kindly to proceed further and forward a regular proposal for sale of the land by private treaty, alongwith the complete information/ documents including the market price on the prescribed pro forma as required in this Office Circular Memorandum No, 1456- 74-1/2143-CS, dated the 3rd July 1974, addressed to all Deputy Commissioners in the Punjab and a copy of which was also endorsed to you vide this Office endorsement No, 1456-74-1/2144-C. S of even date."
But this proposal in the meantime was opposed by the Secretary District Housing Committee, Faisalabad by his reference dated 11-7-1978 addressed to the Director-General Housing & Physical Planning Department, Lahore as: ' Subject: Allotment of land measuring 3 marlas, 5i sarsahis plot comprising Khawat No, 2686/2687 min Khatuni No, 3100 min Khasra No, 27/74 situated in Chhatriwala Chowk Jinnah Colony, Faisalabad.
' Reference your Memo. No, DG/HMS 11I/Misc-64/2352 dated 50-5.1978 on the subject noted above.
' The application alongwith its enclosures of Messrs Ghulam Haider Shah and Ghulam Hussain Shah, dated 14-5-1978 is returned herewith the parawise comments as under : (1 & 2) The petitioners have occupied a piece of land from the open space, near Hajvari Mosque is Jinnah Colony, Faisalabad. The site plan is available with their petition perusal of which would show that they are using this site for shops purpose.
(3 & 4) They have confirmed in their petition that they are regularly paying the Tax to the Municipal Corporation Faisalabad. Receipts are attached with their petition. They have also arranged the electric and Sui Gas connections etc. In their shops.
(5) A portion of the open space was converted into a site for Mosque (Hijvari Mosque) and allotted to the Anjuman vide your order No, DG/H&PP/TPS, SC-40/73/2205 dated 8-8-1975.
(6,7 & 8). The Government of Punjab Housing and Physical Planning Department has announced the regularization policy of unauthorized occupants of residential plots and quarters during July 1977 but the petitioners are occupants of portion of open space and are using it as shops and are paying the requisite Taxes. Their petition does not come under the purview of the regularization policy.
' Under the circumstances explained above, the request of Messrs Ghulam Haider/Ghulam Hussain cannot be considered, as the open space stands transferred to the Municipal Corporation for maintenance purposes etc. Leaving the executive side the petitioners agitated the case on the administrative side and ultimately the case reached the Member (Colonies) Board of Revenue Punjab, who after hearing the parties turned down the request of the petitioners by his order dated 26-4-1979 and directed the sale of the site through public auction. This order has been impugned in this writ petition.
4. The first point for consideration in this writ petition is the locus standi of the petitioners who claim the sale of the disputed site through private treaty from the Board of Revenue. Admittedly the site was encroached upon by the petitioners in the year 1968 and then for the use of the site they procured the lincence of encroachment from the Municipal Officer in the year 1969, who acted in granting the licence without lawful authority as the site was the part of the public park reserved in the Scheme sanctioned by the Government and the Municipal Committee was given authority for the purposes of maintenance of the Scheme. In an attempt to establish contact with the site the petitioners gradually and unlawfully under the garb of licence extended the encroachment starting from Thara to Khokha to superstructure fitted with sui-gas and electricity and named it as Cafe Murshid.
5. All concerned including the Secretary Housing Committee Faisalabad, the Deputy Commissioner, the Commissioner and the Member Board of Revenue have not been in doubt that the site forms part of the public park reserved in the Scheme sanctioned by the Government. The Scheme Plan produced by the petitioners with a view to showing their hold on the site displays that the site forms part of the public park reserved I the Scheme for the benefit of the persons settled on the Scheme. As the Municipal Committee was not authorized to issue a licence of encroachment for the site the petitioners could not lay any claim on the strength of such licence. Even the licence of encroachment does not give an right in the property but simply permits the holder to use the site and protects him from the actions and penalties provided under the Municipal Administration Ordinance succeeded by the Punjab Local Government Act. However, the holder of the licence is not protected by the actions of the lawful authority or claimant and under that power, as appears, the Commissioner has directed the resumption of the site forthwith from the petitioners and the Member, Board of Revenue has ordered the sale of the site through public auction. The decision of the Member Board of Revenue in issuing direction for the sale of the site through public auction is itself without jurisdiction. The site forms part of the public park reserved in the scheme sanctioned by the Government who had never effected any modification in the Scheme after observing formalities similar to those observed at the time of sanctioning the Scheme. Also modification could be made in the Scheme without inviting objections from the persons settled on the Scheme for whose benefit the public park has been reserved in the Scheme. The petitioners under the garb of licence encroachment for the issuance of which no authority was given by the Controlling Agency to the Municipal Committee cannot lay any claim to the site in dispute. What to speak of sale of site by private treaty to the petitioners who have encroached upon the site unauthorisedly, they have no right whatsoever to press any claim even for the sale of site otherwise. The petitioners are the encroachers and have no rightful contact with the site in dispute and they have to be discouraged by all means and the Court is not to act in aid of encroachment. The petitioners have, therefore, no locus standi to file this writ petition.
6. The other point arising in this writ petition is whether the Member Board of Revenue has competently directed the sale of the site through public auction. No doubt the land under the Scheme originally belonged to the Government but once the Scheme has been sanctioned no part of the Scheme can be converted for use other than that for which any site is reserved by it. The site undoubtedly forms part of the public park reserved in the Scheme for the benefit and good of the persons settled on the Scheme. Even the Government cannot modify the Scheme arbitrarily. In this case the Scheme stands intact as it was originally sanctioned by B the Government. The Scheme is under the control of the Housing and Physical Planning Department. The Municipal Committee has been given authority for the purposes of maintenance of the Scheme after its completion but under the act of maintenance the Municipal Committee has no authority to allow encroachment on the Scheme. If occasion, demands for public good then modification of the Scheme may be made after inviting objections from the persons settled on the Scheme and that too by the Sanctioning: ' Authority objectively. After the sanction of the Scheme the benefits of the Scheme stand transferred to the persons settled on the Scheme and if any amenity provided in the Scheme needs to be minimized the persons settled on the Scheme have got the right to object to the conversion of any part of the Scheme to their prejudice and can seek the aid of the Court to restrain the Authority from modifying the Scheme. This right has been judicially recognized by the Supreme Court in the case reported as Mian Fazal Din v. Lahore Improvement Trust, Lahore and another (1). Examining the order of the Member Board of Revenue in the light of the above authority his direction to dispose of the site through public auction has to be held without lawful authority. To that extent only the impugned order dated 26-4-1979 is held to be of no legal effect but the petitioners have got no right whatsoever to claim the site in dispute by any means or to remain in its occupation any longer. The Municipal Committee, who has encouraged the petitioners by issuance of licence of encroachment unauthorizedly is under legal duty to dispossess the petitioners, if not already dispossessed, and restore the site as part of the public park after demolishing the superstructure raised thereon. The case of the petitioners has no merit and is dismissed.
7. Before parting with this judgment it is pertinent to state here that earlier to the filing of the writ petition the petitioners had also filed a suit claiming the sale of the site through private treaty and alongwith that filed an application for temporary injunction restraining the respondents from disposing of the site by other means and otherwise. The application for temporary injunction was rejected by the learned Civil Judge, Faisalabad on 14-2-1979 on the ground that the petitioners had got no cause of action. Thereafter they withdrew the suit and filed this writ petition.
(1) PLD 1969 SC 223