ORDER JUDGMENT ABDUL SATTAR GORAYA, J. - By means of this Constitution petition the orders dated 27.12.1999, 6.6.2000 and 18.5.2007 passed by the respondents Nos. 1, 3 and 4 have been brought under impeachment.
2. The facts as stated in the Constitution petition are that Ahata in dispute measuring 9 Marlas, Khasra No. 511, Ghair Mumkin, situated in revenue estate of Sheikhupura Thrao, Tehsil Pasroor District Sialkot was owned by the Federal Government and it was put to auction held on 6.10.1999.
Petitioner participated in the auction and the bid was struck for an amount of Rs. 10,500/- in his favour, It is stated that l/3rd amount, which comes to Rs. 3500/- was deposited at the fall of the hammer. Before Ahata could be put to auction there was publicity through proclamation which fact stands proved from the newspaper, Announcement through loudspeaker in the mosque, and mushtari munadi by beat of drums was also made. Many people participated in the proceeding but the petitioner being highest bidder, the bid was struck in his favour.
3. It is pertinent to point out that Muhammad Akram who was employed in Pak Army made an application to the Commandant, In the said application it was requested thing his father Ali Ahmad may be accommodated in place of the present petitioner and he be given Ahata. The said letter is reproduced hereunder:- "Regiment Artillery Sialkot Cantonment; Telephone: Military 5020 Case Number 9943/1 Ot/A To Deputy Commissioner, District Sialkot.
SUBJECT: Welfare Serving Person in the Army.
1. Attached application in respect of Number 3020414 Havildar Muhammad Akram of this suit 'is enclosed for your kind consideration. Request of the applicant is genuine and it is recommended that favourable action be taken at earliest.
2. Action taken may please be communicated to this unit for the information of the individual. , -
3. Your cooperation in this regard will be highly appreciated.
Sd/- Lieutenant Colonel Commanding Officer (Shahzad Begg)
RESTRICTED No. HC(R)/10492, dated 16.10.1999 A copy alongwith its enclosure is forwarded to A.C., Pasrur for report after due process in accordance with law."
4. The D.O. Letter was forwarded in original by the Deputy Commissioner Sialkot to A.C., Pasrur for report and due process. Subsequently, it revealed that the Deputy Commissioner directed vide his impugned order that Ali Ahmad be given said Ahata by getting 10% surcharge in addition to the bid Rs. 500/-. This order was faithfully complied with by the Collector Sub-Division and appeal was lodged against the said order which failed before the learned x Additional Commissioner Revenue on 6.6.2000 and revision petition was also dismissed. Being incompetent by the Member Board of Revenue.
5. Learned counsel for the petitioner contends that the impugned order passed by the Deputy Commissioner, Sialkot is ex parte; that bid was struck in his favour and in faithful compliance of the order passed by the Collector l/3rd amount was deposited in the treasury whereafter there was no justification available with the Deputy Commissioner to pass the impugned order on asking of the Commandant of Muhammad Akram son of Ali Ahmad.
6. Conversely the learned counsel for the respondent argued that he was in possession of the land and the order passed by the Deputy Commissioner and the subsequent order are lawful in facts and circumstances of the case.
7. I have heard the learned counsel for the parties at considerable length and perused the available record. The Ahata in dispute, is admittedly the evacuee in nature and owned by the Federal Government, After the .Repeal of the settlement laws, under Section 3 of the Repeal Act, undoubtedly the. Agriculture land could be given to the occupant and the remaining properties are put to auction. The Board of Revenue vide letter No. 1407-98/3594/PL(A) I, Board of Revenue, Punjab, Farid Kot House, Lahore, dated the 2.12.1998 issued administrative instructions that as per scheme for the disposal of available and likely to be available rural agricultural land, first right of purchase was to be given to the occupant of the land provided it is shown that he was in possession of the land four harvests prior to Kharif 1973, and his land holding does not exceed subsistence holding of 100 Kanals. Mr. Mehboob Alam Nutkani, Secretary S&R is present in Court who has produced the record. When questioned has stated that the residential land shall put in open auction in terms of Scheme 9 of 1977, and the para 3 of the Repeal Act or administration instructions contained in the letter dated 2.12.1998 are not applicable. This is a common ground between the two parties. That the property was put to an auction and the petitioner was the highest bidder. The bid was struck in his favour for an amount of Rs. 10,500/- and at the fall of hammer petitioner deposited Rs. 3500/- in the treasury, the necessary evidence of which is available on the record. Whereafter Muhammad Akram, Havaldar son of Ali Ahmad respondent made an application to the Commanding Officer Shehzad Bagh who vide the D.O. Letter dated 11.10.1999 imparted necessary instructions in the name of Deputy Commissioner Sialkot that on the request of Muhammad Akram he be accommodated and his case was strongly recommended for favourable action. The D.O. Letter dated 11.10.1999, issued by the Commanding Officer, was made over to the Collector Sub-Division, Pasrur by the D.C.,, who got deposited the amount from the respondent thereunder with 10% surcharge in addition to the highest bid of an amount of Rs. 10,500/-.
8. In any event the position through which merges from the record is that the Deputy Commissioner was influenced by the D.O. Letter of the Commanding Officer in favour of the. Son of the respondent No. 2 and while over stepping the limit of his jurisdiction he passed the impugned order in favour of respondent No. 2 and the Ahata was given to him after getting price. Residential site could only be auctioned under scheme No. IX and by no other means. This scheme was enforced on 31st of January, 1977 under Section 3(1) read with Section 1 of the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975. Para Np. 1(c)(a) of the said scheme provides that it shall be applicable to the residential sites also. Possession has been defined to mean, obtained on or before the first day of January, 1970 by any. Person and includes his successor-in-interest and assignees, In the case in hand, no evidence whatever has been brought on record by the respondent No. 2 to establish that he was in possession from the first day of January, 1970. The application submitted to the Commander by respondent No. 2 is completely silent and on that point it is couched in vague generalization. Once it has been decided after due scrutiny of record that the property be put to auction, the Deputy Commissioner had no jurisdiction to advert the mode of proceedings to the benefit of respondent No. 2. In the case in hand I have noticed with dismay that the petitioner has been meted out an act of success and he has been facing the atrocities on the part of the Executives. The litigant public always comes in the law Courts with the expectations of judicial treatment with their cases by facing incidental hardship and their dispute should not be decided on extraneous consideration or on the recommendations of the persons ranked outsider having some authority or influence to wield. The system will spoil if already not destroyed. The stream of justice should be allowed to flow, unpolluted by extra-institutional influence. While passing the impugned order the Deputy Commissioner, Sialkot has transgressed the limit of his jurisdiction in behaving under the command of Army personnel.
9. In nutshell this petition is accepted and the impugned order passed by the Deputy Commissioner Sialkot is declared to have been passed clearly without jurisdiction without lawful authority and of no legal effect besides being mala fide. As regard the' order passed by the Board of Revenue and the Additional Commissioner, since the appeal and revision after Repeal Act are not competent those can simply to be ignored, and has no bearing upon fate of the case and the auction proceeding held. The decision taken in favour of the petitioner originally in auction proceedings shall remain intact. Petitioner is declared owner of the Ahata subject to deposit of remaining amount if, any. Cost to follow the events.