' MUHAMMAD KHALID MAHMOOD KHAN, J.---Nazim Tehsil Municipal Administration Shahpur assailed order dated 6-3-2008 of respondent No,2 through the present Constitutional petition.
2. As per averments of petition the petitioner is a body corporate, is the successor of defunct Town Committee Shahpur in terms of section 180 of Punjab Local Government Ordinance, 2001.
According to petitioner the defunct Town Committee Shahpur constructed shops on Khasra Nos.118 and 119, the Nazool land, the land was transferred and vested in petitioner as per record of rights in terms of Notification No,1904 dated 12-6-1940. The petitioner has rented out, the shops to different tenants, including Habib Bank Ltd. And is receiving rent since long. The respondents Nos.3 to 57 filed an application for grant of proprietary rights of the land and shops in violation of tenancy agreement with the petitioner. The petitioner objected the request of respondents Nos. 3 to 57, agitating that tenants could not be allowed to deny their title to land and as, such respondents application be dismissed. The respondents Nos.3 to 57 stopped paying rent to petitioner illegally.
The Collector/Deputy Commissioner Sargodha without hearing petitioner recommended the grant of proprietary rights to respondents Nos.3 to 57 on 9-7-1999. The petitioner challenged the said order through Writ Petition No,6931 of 2000, the petition was disposed of on 24-4-2000 on the assurance of Addl. Advocate General, with the observation that unless and until the right and title of shops in dispute is not determined the proprietary rights will not be granted to respondents Nos.3 to 57. The petitioner then filed representation before respondent No,2 challenging memo No,61-98/CSIII dated 19-1-1998, order dated 20-8-1998 of District Collector Sargodha and order dated 28-7-2003 of Board of Revenue against the rejection of petitioner representation. The petitioner again challenged order dated 28-7-2003 through Writ Petition No,2426 of 2004, which was allowed on 27-4-2006 and case was remanded to respondent No,2 for fresh decision. The respondent No, 2 on 6-3-2008 declined petitioner's request and allowed sale of land to respondents Nos.3 to 57 through private treaty, under Encroachment Regulation Policy subject to scrutiny of possession of each and every occupants/respondents Nos.3 to 57.
3. Learned counsel for petitioner submits that impugned order is in violation of orders dated 24-4- 2000 and 27-9-2006 passed by this Court in Writ Petitions Nos.6931 of 2000 and No,2426 of 2004 respectively. He submits that respondents Nos.3 to 57 are their tenants by way of written tenancy agreement and as such after admitting petitioner as owner the respondents Nos.3 to 57 could not be allowed to wriggle out from their obligation under the written Tenancy. The petitioner has constructed shops by investing huge amount and the rent so recovered is being used for the welfare of public at large. Learned counsel further submits that respondent No,1 has failed to determine the status of respondents Nos.3 to 57 and has wrongly held that their case is covered under Encroachment Regularization Policy of Punjab Government as encroachers. Respondent No,2 has wrongly held that shops were demolished in flood and respondents Nos.3 to 57 constructed shops themselves. He adds that impugned order is in violation of policy of Government of Punjab No,3761-2003/3059 CS (V). The petitioner if is not the owner but its possession is not illegal, the petitioner came in to possession of the land on 12-6-1940 and as such the respondents could not be treated in any case entitled for the grant of proprietary rights of the shops. The petitioner is in constructive possession of the shops and is entitled for the grant of proprietary rights.
4. Learned counsel for respondents summits that petitioner has failed to produce any document of title, the owner of land under the shops is Province of Punjab. The petitioner maximum can claim to be the Manager of suit land, He submits that petitioner is not the successor of defunct Town Committee in terms of section 180 of the Punjab Local Government Ordinance, 2001. Respondents Nos.3 to 57 are in physical possessions of shops, they have constructed the shops themselves and are in its undisputed possession since decades. The petitioner by force were collecting the rent under the garb of 'Teh Bazari' and as such it could not be said that petitioner is landlord of respondents Nos.3 to 57. He has relied on Shri Tikamdas Hiranand and 3 others v. Divisional Evacuee Trust Committee Karachi Zone, Karachi and 4 others, (1973 SCM R 315), Haji Muhammad Islami Khan and others -v. Punjab Province and others (2001 M LD 1916) and Writ Petition No, 2426 of 2004 decided on 27-4-2006.
5. Learned A.A.-G. Adopts the arguments of respondents Nos.3 to 57.
6. Heard. Record perused.
7. The petitioner claim is that vide memo dated 12th June 1940 they were shown to be the transferee of Nazool land. The memorandum relied upon is read as under:- "Subject: ' Transfer of certain Nazool areas, situate at Shahpur Civil Station from the management of the Shahpur District Board to that of the local Town Committee".
' Reference your letter No, 835, dated the 22nd May 1940
2. Under section 34 of the Punjab Small Towns Act, 1921, the management of the Nazool land, mentioned in the statement accompanying your letter under reference under the charge of the District Board, Shahpur is hereby placed under the administration and control of the Town Committee of Shahpur Civil Station. No, 19041Cir, Deputy Commissioner's office Shahpur/District Dated, Sargodha the 12th June 1940 "
8. The argument of learned counsel is that under memorandum dated 12-6-1940 the land vests in the petitioner, the petitioner has constructed the shops on suit land and has rented out to respondents Nos.3 to 57. It has to be seen whether under the said memorandum petitioner become the owner of land or not? The petitioner alternate argument is that petitioner if is not a transferee even then, on the basis of undisputed long legal possession, the petitioner has acquired preferential right of transfer of land against all others, the respondent No,1 is thus bound to offer the land for sale to petitioner.
9. Bare perusal of letter dated 12-6-1940 shows that petitioner was appointed Manager of Nazool land and the ownership remain with the respondent No,
1. The petitioner also claims its right under policy letter of Punjab Government Local Government Department, For appreciating the contentions of petitioner the policy letter is reproduced as under- "POLICY LETTER OF GOVT. OF PUNJAB LOCAL GOVT.
DEPARTMENT ' TRANSFER OF NAZUL LANDS IN POSSESSION OF THE DISTRICT COUNCILS TO THEM. No,S-III /10121/81 (6th February, 1982).---In continuation of this department letter of even number dated 21st October, 1981, on the above subject it has been decided by the Government in consultation with the Board of Revenue that:-
(a) The State/Nazool land if required for the provision of civil amenities like Parks, Gardens, Playgrounds, Road, Streets. Schools and Dispensaries etc. Should be transferred by Board of Revenue to Local Councils on nominal price; and
(b) State/Nazool land if required for commercial purpose by the local councils can be sold to them on prevailing 'market rate: Plus 10% surcharges as already mentioned in this Department letter dated 21-10-1981 referred to above.
2. You are accordingly advised to get the lands in question if any required, transferred to your local council from the Board of Revenue, through the Deputy Commissioner concerned",
10. Admittedly the petitioner is not requiring the land for Parks, Gardens, Playgrounds, Roads, Streets, Schools and Dispenaries etc., hence, the petitioner's case will fall under para (b) which provides that State/Nazool land if is required to Local Council the Provincial Government can sell the land to Local Councils on prevailing market rate plus 10% surcharge.
11. In clause (b) the word "can" has been used. The word "can" is interchangeable with word "May", meaning thereby the authority to sell the land remain with the owner i,e, Provincial Government, the owner if wants to sell the land, he may consider the request of petitioner along with others. The word "can" used has a significance, the owner/ Provincial government while issuing the said policy letter was conscious of its rights, and that is the reason the proprietary rights were not given to the then local government, only the rights to manage and run the affairs of the land was given to petitioner. It was not difficult for respondent No,1 to transfer the proprietary of land to petitioner even free of costs, instead of transferring management but respondent No,1 has transferred only the management of land. So the argument of learned counsel that they are the owners of land has no force.
12. In 1999 Deputy Commissioner Sargodha conducted detail inquiry about the status of land and the ownership of the construction thereon and in pursuance of inquiry on 9-7-1999 Deputy Commissioner Sargodha District recommended to Commissioner Sargodha Division the sale of suit land to shop keepers. The relevant part of the inquiry is reproduced as under:- "3. The case was processed and report of revenue, filed staff obtained. According to the report, 53 shopkeepers are in occupation of state land measuring 6 kanals 16 marlas and 43 Sq. Ft.
Comprising Khasra Nos.118 and 119 situated in Shahpur Sddar for the last 30 to 35 years. It may be mentioned that previously Town Committee Shahpur Saddar has been recovering rent from the occupant/shopkeepers contrary to the Government policy but on the request of applicant the rent is now being deposited into Government Treasury in pursuance of the orders of the Board of Revenue".
13. The Deputy Commissioner finally recommended as under:-- "The Chairman Town Committee, Shahpur Saddar vide letter No,502/TCS dated 9-6-1998 (Copy enclosed) has also requested that the proprietary rights of the land in question may be given to Town Committee instead of occupant/shopkeepers. In this connection it is submitted that in pursuance of the existing policy of Government /Board of Revenue contained in Letter No,31 37-94/ 3342-CSVI dated 12-10-1993 read with Letter No,187-98/1410-CSI dated 8-7-1998 the encroachers /lessees having possession over a decade are entitled for the grant of proprietary rights of state land at the market rate plus 50%penality and 10 % surcharge for sale by private treaty".
14. The petitioner twice challenged the recommendation of respondent No,1 but remain unsuccessful due to their failure to produce evidence even for the construction of shops.
15. Learned counsel for petitioner submits that under section 121 of the Punjab Local Government Ordinance, 2001 the property in dispute vests in T.M.A.
For appreciating the argument of learned counsel, section 121 of Ordinance, 2001 is reproduced as under:-- "121. Ownership of immovable property :--(1) subject to any reservations made, or any conditions imposed by the Government the property specified hereunder shall vest in the respective local Government if it is:-
(a) Vested in a local government through succession as provided in Section 180;
(b) Transferred to the local government by the Government or any other authority, organization or an individual; and (c) constructed or acquired by a local government with its title.
(2) The properties of the Government in possession of the local councils established under Punjab Local Government Ordinance, 1979 (VI of 1979) shall pass on to their successors as provided in Section 180 till varied by the Government.
(3) The successor local government shall subject to policy of the Government or contractual obligations, make bye-law for the use, development and management of the local government properties.
(4) The Government shall not, except with their prior consent of the local government concerned, reallocate or in any other manner divest title of proprieties vested in that local government under this Ordinance".
16. The perusal of section 121 Ibid shows that assets of local bodies stand vested in TMA, the word "assets" has been used in section 121 is important. The question is what is asset, the right to manage the things on behalf of other is an asset or not? The ordinary meaning of word "asset" is useful or valuable thing or property owned by a person as per Oxford English Dictionary.
17. The memorandum dated 12-6-1940 ibid shows that Provincial Government transferred the Management of Nazool land to petitioner. The intention of the author of the memorandum is clear, that petitioner is only authorized to manage and control the affairs of Nazool land only, hence the right of management / supervision is not the assets as the said right is dependent on the sweet will of principal. It is not the case of the petitioner that terms of memorandum are not irrevocable. The claim of the petitioner can further be evaluated under Section 122 of Punjab Local Government Ordinance 2001. Section 122 is read as under:-- "122. Transfer of Property by the Government-subject to such conditions as may be prescribed, the Government may, on its own accord or on a request by a District government, transfer the management of 'Nazool' land, "auqaf land" or any other Government or public property to it for administration as a trustee".
18. The conjunctive study of section 121 of Ordinance 2001 and memorandum dated 12-6-1940 will show that petitioner is only a trustee and not the owner nor has any lien or charge against the suit land. It is settled principle of law that trustee has no right in the trust property but he is a custodian of the trust property and act on the instructions and authority of the Board of trustee and if the trustee transgressed his powers or authority, his authority is liable to be terminated and he will be personally liable to make good the loss to the trust due to his act in excess of his authority.
19. Leaned A.A.G. Has rightly argued that petitioner has received huge amount under the garb of rent from respondents Nos.3 to 57 and has not paid a penny to Provincial Government, the petitioner has not denied the allegation of respondent No,I but is claiming that petitioner is the owner of land.
20. Learned counsel for petitioner has relied on Muhammad Anwar and 523 others v. Municipal Committee, Sahiwal and others (2006 SCM R 1419). The operative para of said judgment is reproduced as under:-- "(A close scrutiny of the facts reveals that before taking over the 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 favour 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 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 sufficient fact to he 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".
21. The facts of judgment of honourable Supreme Court of Pakistan are distinguishable from the facts of present case. In referred case the Municipal Committee has taken permission from District Collector for construction of shops, but in this case the petitioner itself has not asserted that they have constructed the shops with the permission of Provincial Government. Rather, the petitioner's case is that they being the owners of 'Nazool' land has constructed shops and rented out the same, whereas the inquiry conducted by the Provincial Government reveals that shops were constructed by the respondents Nos. 3 to 57, further in the present case it is the Provincial Government who is disputing the alleged claim of petitioner and lastly the petitioner claim is that respondent No,1 is bound to sell the land to petitioner, meaning thereby the petitioner has a charge against the property. The rent agreement relied upon by the petitioner is for the year 1994. The petitioner has not placed on record any document showing that they constructed shops after obtaining permission by the Provincial Government in the year 1940 or after that. Further even it is assumed that petitioner has constructed shops although without permission of Provincial Government, but they have not paid a single penny to Provincial Government for utilizing and managing their land.
The petitioners toeing Manager of the land was duty bound to account for the proceeds of rent to Provincial Government. The finding of revenue hierarchy is that petitioner has utilized unauthorized the Provincial Government land. The rent recovered by petitioner was never paid to Provincial Government. It is an admitted fact that respondents Nos.3 to 57 are paying rent from 1999 to Provincial Government by the orders of Board of Revenue and this act of Provincial Government was never challenged by the petitioner.
22. The argument of learned counsel for petitioner that respondent/Government is duty bound to sell the land under the shops to petitioner is of no avail, it is the prerogative of the owner to sell its property to a person of his choice for getting maximum price of his land. The Provincial Government after holding inquiry came to the conclusion that respondents Nos.3 to 57 have constructed shops by spending their own funds and as such they are entitled for the transfer of proprietary rights of land under the shops on payment of market price along with 10% surcharge.
The petitioner cannot force the Provincial Government to sell its property to petitioner being their manager.
23. It is a settled principle of law that in Constitutional petition the disputed question of fact cannot be resolved.
24. This court in its constitutional jurisdiction is unable to hold factual inquiry whether petitioner constructed shops or respondents Nos.3 to 57 constructed the same, this claim of petitioner requires deeper inquiry which can be carried out by recording evidence and as such the petition is not maintainable on this ground also, consequently the petition is dismissed.