CH. MUHAMMAD IBRAHIM ZIA, J. --- This appeal with leave of the Court is preferred against the judgment of the High Court dated 29.4.2003 whereby while accepting the writ petition filed by respondents herein, the notification of transfer of land in favour of the appellants dated 19.2.1999, has been declared without lawful authority.
2. Precise summary of facts giving rise to this case is that the appellants submitted an application before the Prime Minister on 18.8.1997 wherein they claimed that they are the owners of land measuring 15 kanals and 13 marlas according to mutation No. 206, (comprising survey No. 209), situated in village Karka Chametta, Tehsil and District Muzaffarabad. This land being adjoining to the Forest Land and also having conifer timber trees on it hence, they want to exchange it with the Forest Land situated at Neelum Valley road. On this application, the Prime Minister issued a direction for process of the case and after some process, finally on 19.2.1999, following notification was issued:- {{URDU TEXT}}
3. The respondents, who are permanent residents and the owners of land situated in village Karka Chametta, feeling aggrieved from this notification, challenged its propriety through the writ petition filed before the High Court on 25.5.1999 wherein they claimed that the present appellants, being close relatives of the MLA/Minister of time, due to political influence, illegally obtained Shamilate-Deh" land which is in the joint ownership of the appellants and other natives of village. The whole proceeding has been conducted in a clandestine and deceitful manner. Moreover, in the notification, for extending undue benefit to the beneficiaries, survey number of the land has not been mentioned, thus, the notification is without lawful authority.
4. After completion of due proceedings, finally the High Court, while accepting the writ petition, declared the notification without lawful authority vide judgment dated 17.10.2001. The matter was brought in appeal before this Court and vide judgment dated 11.6.2002, while setting aside the judgment of the High Court, the case was remanded back for fresh decision. The learned High Court once again, vide judgment dated 9.4.2003, granted the writ prayed for. The appellants feeling aggrieved, challenged the propriety of the judgment of the High Court through this appeal on various grounds.
5. Kh. Muhammad Nasim Advocate, the learned counsel for the appellants, argued the case at some length. He stated detailed facts of the case and mainly focused on the point that the respondents have got no locus standi.
The writ petition was filed purely on the question of fact which does not fall within the domain of writ jurisdiction.
The respondents failed to substantiate their version through any proof. The writ petition was filed despite availability of an alternate remedy. The High Court has fell in error of law while placing reliance upon the rules which relate to settlement of the land whereas the notification has not been issued during settlement of land.
The High Court has also not determined whether the transferred land is "Shamlat-e-Deh" or it is Forest Land.
Thus, the impugned judgment is not sustainable. He also referred to Rules of Business and according to him, under these rules, Government is empowered to transfer the land to any body.
6. While controverting the arguments of the learned counsel for the appellants, Mr. Muhammad Yaqoob Khan Mughal Advocate, the learned counsel for the respondents, vehemently defended the impugned judgment on the ground that the appellants have mis-stated the facts rather they have committed fraud. Under the mutation No. 206, they have only purchased a piece of land measuring 7 kanals and 2 marlas. They have wrongly mentioned in the application that they are the owners of "Shamilat-e-Deh" land measuring 15 kanals and 13 marlas. The owner of 7 kanals land by no means can claim 15 kanals share in "Shamilat-e-Deh" land. It is further contended that under the law of the land, the Government is not empowered to issue such notification and distribute the state- property. The "Shamlat-e-Deh" land, according to law, is a common land of the villagers and the Government or any other state authority, is not empowered to transfer this land. Such-like transfer is violative to the Constitutionally guaranteed fundamental rights of property. Therefore, the learned High Court has 'rightly set at naught the notification of transfer of land.
7. We have given due appreciation to the arguments advanced by the parties and also minutely perused the record. The appellant's application for transfer/Exchange of land, which was initially submitted to the Prime Minister, upon which the process has been initiated, reads as following:- {{URDU TEXT}}
8. It is also very amazing that in the notification, through which the disputed land is transferred to the appellants, no survey number of land has been mentioned. Perhaps, it has been left open for the sweet choice of the appellants to select the place which they deem suitable to take into possession. This also smacks of undue favour extended to the appellants by the concerned officials and the public office holders.'
9. The basic Constitutional provision, dealing with the transfer of land by the Government, is Section 52-A of the Azad Jammu and Kashmir Interim Constitution Act, 1974. Sub-section of this Section provides that "transfer of land by the Government or the Council shall be regulated by law". This is mandatory under the provisions of the Constitution that for transfer of land, there must be some procedural law. It is not a sweet discretion of the Government or other- public authorities to distribute the state-property as charity. Under the provisions of Land Acquisition Act, the Azad Jammu and Kashmir Land Acquisition Rules 1994 have been framed but in these rules, the Government is only empowered to transfer the acquired land to such a legal person for whom the Government is empowered to acquire the land. Relevant rules reads as following.. -- "14. Where any land has been acquired for department of the Government or a local authority for a public purpose and the said land or a portion thereof is no more required for that purpose, it may be used for any other public purpose or for a company or industry for which land can be acquired under the Act. 15. (1) Where any land has been acquired for a company , it shall not be sold or otherwise disposed of except with the prior and express approval of Government. (2) If the company for which any land has been acquired makes an application to Government under sub-rule (1) for permission to sell or otherwise dispose of the acquired land or any part thereof, and in case the required permission is declined, then the following procedure shall be followed:---
(i) In a case where compensation to the original owners of their heirs had not been paid, the land shall be resumed and restored to the original owners or their heirs. (ii) In a case where compensation had been paid fully or partly, the land shall be resumed and offered for sale to the original land owners or their heirs in lieu of reimbursement of the amount of compensation with interest at the Government rate prevalent during the period the land remained out of their possession.
(iii) If the original land owners or their heirs have been provided alternate land in lieu of their acquired land, or if the original land owners or their heirs are not prepared to accept restoration of land under clause (ii) the land shall be resumed in lieu of reimbursement of the amount of compensation with interest at the Government rate prevalent during the period the land remained in possession of the company. The land shall just be utilized or disposed of by Board of Revenue in accordance with the policy of the Government regarding disposal of lands.
(iv) In a case where any improvement has been made or any structure has been raised by the company on the land proposed to be disposed of, the permission to sell land may be granted by Government subject to the condition that the difference in the market value of the land at the time of the sale and the amount of the acquisition shall be payable to the original land owners or their heirs.
16. Where the land is used for a purpose other than the one for which it was got acquired, by the acquiring company the same shall be resumed immediately by Government without any compensation and the acquiring company shall also be liable to a penalty which may extend to Rs. 50,000,00/- depending upon the nature bf each case."
(underlining is ours)
10. The reading of hereinabove, reproduced rules reveals that once the land is acquired by the Government for public purpose or for company or industry it cannot be utilized against the public interest or for the individual's benefit. The first condition is that the acquired land can only be used for the purpose it is acquired, the land can be acquired under the Land Acquisition Act, whereas there is no provision empowering the Government to acquire land for any individual's personal interest or benefit. The other condition is that even if the land is acquired for a company, the company cannot sell the same without express approval of the Government. This condition also is laid down with spirit that public interest is supreme. The Government will have to watch the interest of public. The third condition is that if at all, the acquired property is not required for the public purpose or for the purpose for which it is acquired, the same shall be resumed and restored to the original owners or their heirs from whom it was acquired and if there is no such eventuality, the land shall be utilized or disposed of by the Board of Revenue, in accordance with the policy of Government regarding disposal of the land. Thus, the scheme and spirit of these rules ultimately also is in consonance of the Constitutional provision as expressed under the provision of Section 52-A of the Interim Constitution Act, 1974, which means that without any express and specific legislation no one is empowered to transfer the Government land to any person in an arbitrary manner.
11. Even otherwise, the question in the instant case is whether the Government is empowered to transfer or exchange the "Shamilat" or "Khalsa" land with any private land. Neither any such provision exists in the statutes, dealing with "Khalsa land" or the "Shamilat land", nor any other provision of any enforced law empowers the government to execute such-like transaction of exchange in the interest of private person. In the Shamilat Land of village the owners of the State have got vested legal rights and interest, hence the government even otherwise is not empowered to transfer such land through notification to any individual person.
12. The appellants failed to refer to any other provision of law empowering the Government to transfer the, land to private persons. It is settled principle of law that things should be done according to prescribed mode and not otherwise. This principle of law has been followed by this Court in numerous pronouncements.
Reference may be made to a case reported as 2004 SCR 23 & 378, wherein it has been held that if a thing is to be done in a particular way, it should be done in that way and manner as prescribed or should not be done at all. Therefore, we are constrained to hold that the Government, under the law enforced in the Azad Jammu and Kashmir, without making law according to spirit of Section 52-A of the Azad Jammu and Kashmir Interim Constitution Act, 1974, cannot transfer the State land to any person or exchange the same.
13. So for the powers bestowed upon the Government under the Land Acquisition Rules, are concerned, these are conditional only to the extent of acquired land and that too can only be transferred to such a person for whom under law, the Government can acquire the land. Thus, the whole transaction in this case without lawful authority. It is now settled principle of law that any act without lawful authority does not create any interest or legal rights in favour of the beneficiaries.
14. A perusal of record of this case reveals that public servants of the Revenue and Forest Departments have miserably failed to perform their duties according to law. It appears that they haye joined hands with the beneficiaries of the notification and extended undue favour to them either under some pressure or in lieu of some gratification. Be that it may, but it is very regrettable. For good governance and supremacy of law, the respective authorities should take serious notice of such mal-practices and misuse of powers.
15. Moreover, in the case in hand, conduct of the appellants is also fishy. They have misstated the facts in misleading the concerned authorities Hence, the impugned notification does not create any valid rights in their favour and now they cannot claim any damages on the basis of such unlawful notification. The impugned judgment of the. High Court is generally consistent with the principles of law and Constitutional provisions, which does not call for any interference, therefore, this appeal is dismissed with costs.
Civil .