CH. MUHAMMAD TARIQ, J. - This petition is directed against the order dated 21.1.2010 passed by Member (Judicial-V)/Chief Settlement Commissioner, Board of Revenue, Punjab.
2. Learned counsel for the petitioners inter alia contends that Mst. Sabra Begum alias Shagufta Begum (late) wife of petitioner No. 1 and mother of rest of the petitioners, in 1975, obtained possession of plot measuring 4 kanals bearing No. 89 situated in Block 'G', Model Town, Lahore.
Thereafter, she got building plan from the Cooperative Model Town Society, Model Town, Lahore.
Electricity and water connections were provided in the year 1975, whereafter sui gas supply was also extended to the building. The name of said lady as registered in the record of Excise and Taxation Department in the year 1975-76.
3. After the enforcement of the scheme for the management and disposal of available urban properties of the Punjab Government, applications for transfer on the prescribed terms were invited and late Mst. Sabra Begum on 9.10.1977 submitted her application form bearing Diary No. DSC/P- 77-530, dated 9.10.1977. Upon the orders dated 17.8.1978 passed on the application, the Settlement Patwari inspected the house in question and confirmed and construction to be permanent over an area of 22 marlas but he made a mention of the pendency of writ petition No. 191/R/78 in this Court.
Therefore, the Notified Officer/DSC vide his order dated 17.8.1978 postponed the .Decision on the application till the disposal of the writ petition.
4. After prolonged litigation spread over by about 30 years, Mr. Zafar Iqbal, learned Member (Judicial-I), Board of Revenue, Punjab/Administrator, Residual Properties/Notified Officer vide his order dated 20.2.2007 passed in compliance of the remand order dated 9.4.2002 delivered by this Court in Writ Petitions Nos. 90-R/1993 and 95-R/1993, declared the petitioners to be entitled for transfer of 4 kanals plot on the basis of application form dated 9.10.1997 and assigned the documentation work to the Deputy Administrator (Residual Properties), Lahore.
5. Learned counsel for the petitioners submitted that one Tufail Haider through forged, fake, bogus and fabricated documents made a fraudulent claim over the property in question through Writ Petition No. 19-R/2008 but it was held that Tufail Haider's claims is based on forged and fabricated documents and thus the respondent has closed his chapter further submits that the petitioner No. 1 moved an application dated 10.3,2009 before the respondent requesting for entrustment of the matter of documentation, determination of the transfer price and issuance of the transfer deed as required by the judicial order dated 20.2.2007, whereupon the respondent vide para 7 of order dated 21.1.2010 has inter alia held that the application is illegal, unlawful and without jurisdiction being ultra vires the Scheme for the Management and Disposal of Available Urban Properties framed by the Government of the Punjab under Section 3(1) read, with Section 1 of the Evacuee Property and Displaced Persons Laws (Repeal) Act, XIV of 1975.
6. Learned counsel for the petitioners submits that thereafter the petitioners filed a Writ Petition No. 50-R- 2010 in this Court which was fixed for hearing on 9.3.2010 and this Court was pleased to pass the following order:- "Learned counsel for the petitioner states that he will be satisfied if a direction is issued to respondent to do the needful.
Let a copy of this writ petition be sent to the respondent with a direction to implement the order dated 20.2.2007 passed by Mr. Zafar Iqbal, Member (Judicial), Board of Revenue, Punjab, Lahore in accordance with law. With this observation the instant writ petition is disposed of."
7. Learned counsel for the petitioners further contends that if appeared in daily "Jang" Lahore that the property in question is put for auction for 6.4.2010 despite the fact that the petitioner No. 1 submitted the copy of the order dated 9.3.2010 to the respondent. Further contends that the petitioner No. 1 also approached the respondent to postpone the auction who declined to receive the petitioner's application advising him to obtain an injunctive order from the Lahore High Court, Lahore. Hence this petition.
8. Learned counsel for the petitioners contends that the date of possession for entitling an applicant for transfer of available residential budding site under the Residual Properties Scheme of 1977 was on or before 1.1.1976. As such the-observation made by the Respondent in the impugned para 7 of order dated 21.1.2010 that the possession and construction ought to have been approved by a Deputy Administrator (R.P.) is illogical because, such office was created only after enforcement of the Scheme on 31.1.1977 by the Government of the Punjab. Further contends that in the area of Model Town, Lahore, the Cooperative Model Town. Society, Lahore discharges the municipal functions and Mrs. Sabra Begum got the building plan approved from the said Society and even got the building completion certificate dated 21.9.1975 from the said Society and neither any provision of the Displaced Persons (C&R) Act No. 28 of 1958 (since repealed), nor the Settlement Schemes Nos. VI, VIII or Reconstituted Settlement Scheme VIII or for that matter the Scheme of 1977 conferred any municipal functions upon settlement officers or then Notified Officer.
9. Learned counsel for the petitioners further contends that the observation of the respondent that instead of Mrs. Sabra Begum, petitioner No. 1 should have submitted the application form for transfer of the plot in question is violative of the Constitution and is completely opposed to the Quranic injunctions wherein gender distinction has been banned by making males and females as heirs to each other. Further contends that the respondent has illegally and unlawfully assumed that the petitioners want the transfer of the plot on the basis of amenities in the house, whereas the matter of fact is that already the judicial order dated 20.2.2007 passed by Member (Judicial-I), Board of Revenue had declared Mrs. Sabra Begum to be entitled for transfer of the property on the basis of her form. The said order has attained finality as held by this Court in judgment dated 4.2.2007 (2009 YLR 1255).
10. Learned counsel for the petitioners further contends that the manifold increase in prices of the plots since 1975 does not affect the petitioners because the price recoverable formula from the petitioners has been defined and provided in sub-para 1 (vii) of para 1 of the Residual Properties Scheme of 1977 to be an amount equal to three times of the price of such a building site as determined for the year 1960 by the settlement authority. He submits that in the year 1960, the settlement authority calculated the price of corner plot No. 91/G to be just Rs. 3000/- per kanal and by the application of the formula, the transfer price comes to be Rs. 36,000/- in all, whereas in 1975, Sabra Begum spent an amount of more than Rs. 300,000/- on the construction of her house upon the plot in suit.
11. Learned counsel for the petitioners further contends that there is no concept of classification of urban residential building sites in the Residual Properties Scheme of 1977 or the three Settlement Schemes framed under the repealed Act No. 28 of 1958; therefore, the observation recorded in the impugned order that the plot was of class 'A' is alien to the Scheme of 1977 and does not affect the entitlement of the petitioners for transfer of the property. Moreover, the order of putting the property in dispute for auction highly offends paragraphs 6 and 11 of the R.F. Scheme of 1977 and it is not sustainable in the eye of law. He submits that at the .Most, the respondent could have asked the petitioners to also of for the purchase of rear 2 kanals at a price which may be fixed and the petitioners are filling and ready to purchase the rear 2 kanals of plot No. 89/G.'
12. Learned counsel for the petitioner further contends that he had completed his house on 21.9.1975 and thereafter all the utilities connections were provided by various authorities to the building. He has referred to scheme No. 9 which provides that in case an unauthorized person raises construction over a- vacant plot, he will be declared as an absolute owner of the property. Learned counsel further contends that Chief Settlement Commissioner has no authority to deal with the- suit matter nor the Member, Board of Revenue has any authority to pass an order and the impugned order is without jurisdiction which has no legal sanctity in the eye of law and is liable to be set aside because the petitioners raised construction over the plot after their established possession and after approval of building plan by. The competent authority. Learned counsel has referred the law reported as 2009 YLR 1255 and has pointed of that a similar matter is pending in the Hon'ble Supreme Court of Pakistan in respect of the suit property. Therefore, the impugned order is a nullity in the eye of law and liable to be set aside
13. On the other hand, learned counsel for the respondent contends that impugned order was not passed simply as Chief Settlement Commissioner but it was passed in the capacity of Member, Board of Revenue. Learned counsel has relied upon the case of "Muhammad Baran and others v.
Member (Settlement and Rehabilitation), Board of Revenue, Punjab and others" reported as PLD 1991 SC 691 in which it was held that where the matters are found result of fraud and forgery; the Board of Revenue can pass appropriate orders and this Court will not exercise any discretional jurisdiction to annul the orders of the Board of Revenue. Learned counsel further contends that in 1975, the said scheme as not available to the petitioner and points of that the authority of Chief Settlement Commissioner could be under attack but the same is not the position with Member; Board of Revenue, Punjab who has all the authority to pass the impugned order. Learned counsel has pointed of para 1 of the petition dated 10.3.2009 filed by the petitioner No. 1 in which it was mentioned that the suit plot was originally owned by one Mst. Bhagwanti Devi wife of Rai Bahadur Ishardas who migrated to India and according to the order dated 18.6.1974 passed by Deputy Settlement Commissioner (Plots), Lahore, there was no construction on the suit plot. Similarly, it was categorically mentioned that the Settlement Scheme No. 8 be cancelled and the suit plot be put to commence auction. Against order, one Hafiz Abdul Ghani filed a writ petition No. 19/R/1983 in the Lahore High Court which was dismissed in limine on 8.10.1983. The said Hafiz Abdul Ghani assailed the order dated 8.10.1983 in the Supreme Court of Pakistan but in 1990, the C.P.L.A, was withdrawn and the order dated 8.6.1974 passed by Deputy Settlement Commissioner (Plots), Lahore attained finality. Learned counsel further points of that in writ petition No. 191/R/1978, the Settlement Department submitted his report on 20.5.1978 in which it was pointed of that the suit plot had not been transferred to any one; therefore, the writ petition being devoid of merit be dismissed.
Learned counsel for the respondent further contends that C.P.L.A. No. 709/L/09 has been filed by Member, Board of Revenue, Punjab against Sagheer Ahmed which petition has no nexus with the instant writ petition.
14. I have heard the arguments advanced by the parties at length and have also gone through the record available on file.
15. Admittedly, the petitioners have submitted their transfer forms which are still lying with the department for final disposal. The concerned authorities should have processed the same and after evaluating the respective merits of forms, the same should have been finally disposed of in accordance with law. Reliance is placed on the case of "Mst. Manzoor Begum v. Member, Board of Revenue" reported as 1994 M LD 1179. During the lengthy arguments, learned counsel for the petitioners could not produce the title deed in favour of Mst. Sabra Begum because the utility bills are not a proofs of title. Similarly, the receipts of property tax do not prove the title because the Excise and Taxation Department only maintains the record for the purposes of recovery of property tax. The suit plot is state property and mere possession does not confer the title upon a person who is in legal or illegal possession.
16. Admittedly, form submitted under the scheme needs disposal under the law. Further the scheme for the Management and Disposal of Available- Urban Properties (Amendments) dated 28.7.1984 provides that a present occupant of such properties will have preferential right to purchase the property according to procedure. Such right shall be exercisable only if a permanent construction has been made. Provided further that in such cases, the title area be offered for purchase which shall not exceed three times the plinth area or 2 kanals whichever is less.
Accordingly, the petitioners can be benefited who are also authorized to participate in the open auction.
17. In the light of law laid down in case "Muhammad Baran and others v. Member (Settlement and Rehabilitation), Board of Revenue, Punjab and others" reported as PLD 1991 SC 691. No interference is called for. Order accordingly.