' UMAR ATA BANDIAL, CJ. This judgment shall also decide connected writ petitions bearing W.P. Nos.
4639 and 4643 of 2011 involving a common question of law.
2. The petitioner was granted by the BOR a lease of land measuring 66-Kanals, 15-Marlas situate at Chak No, 673/14-GB, Tehsil Kamalia, District Toba Tek Singh on 02.04.1995 for establishing a fish farm for a term of 5 years (extendable) at the rate of Rs, 1000/- per acre per annum. The petitioner established a fish farm in the said land in 1995 for which annual lease period he paid the full rent.
However, he has thereafter occupied the said land without payment of any rent whatsoever. No action for default in payment of rent has been taken against the petitioner by the respondents till date.
3. On 10.12.2003, the BOR issued a notification setting out conditions for sale of available State land leased out under different schemes for agricultural and commercial purposes. The petitioner opted for sale of the leased land in his favour on 25.06.2004 as evidenced by a certified extract from the relevant register maintained by the office of DDO(R) Toba Tek Singh. According to paragraph 3 of the notification dated 10.12.2003 "no person shall be eligible to purchase State land under these conditions unless he is a regular lessee of Colonies Department holding lease of State land, mentioned in para 2(h) above." For present purposes, lease for a fish farm is notified as an approved lease in paragraph 2(h) of the said notification.
4. The option filed by a lessee is effective subject to a declaration of his eligibility by the District Collector in terms of paragraph 6 of the said notification. That paragraph is lengthy in its text.
However, the gist thereof is that DDO(R) concerned shall examine the claim of a lessee with regard to his eligibility and recommend his case to the District Collector. However, in a case where eligibility is not established no decision shall be rendered without hearing the applicant lessee.
Where eligibility of a lessee is recommended by the District Collector, market ,price of the land shall be assessed by the District Price Assessment Committee ("DPAC") and approved by the.
Government of Punjab at the rate prevailing at the time of filing of option by a lessee for purchase of State land. In the present case, the option given- by the petitioner has not been considered by the DDO (R) till date. Consequently, the option of the petitioner still rests at the initial stage of consideration of eligibility which matter is undecided and also the price of the land sought to be purchased by him has yet to be determined.
5. Meanwhile, the impugned notification was issued by the respondents on 03.12.2010. That notification has cancelled the notification dated 31.12.2001 or earlier notifications whereby State land has been leased to persons for commercial purposes. It is noted in the impugned notification that all relevant leases in respect of land given out for non-agricultural commercial purposes including a fish farm have expired on or before 2007 or 2008 and no extension in any lease has been granted after 2003. On that basis it is claimed by the respondents that no accrued rights of lessees have survived until 03.12.2010 when by the impugned notification, the earlier notifications allowing lease of State land for commercial purposes have been cancelled.
6. Learned counsel for the petitioner has urged that the petitioner acquired a vested right upon filing of his option under notification dated 10.12.2003 to purchase State land falling under his fish farm. He has relied on Dr. Syed Sharaf Ali Shah and 2 others v. Province of Sindh and others (2009 SCM R 249) and the judgment dated 27.09.2011 given in' Civil Appeal No, 304-L/2009 titled Member (Colonies), Board of Revenue, Punjab and another v. Nadeem Akhtar etc, to submit that a subsequent change in the policy cannot deprive the petitioner of his vested right to claim the sale of land leased to him at the price determined by the DPAC. He has next submitted that an executive notification cannot curtail or impair accrued rights retrospectively. The impugned notification is admittedly an executive instrument and cannot, therefore, impair any rights accrued to the petitioner on the date when he filed his option on 25.06.2004 under notification dated 10.12.2003. He relies on Mr. Rafiuddin v. Chief Settlement and Rehabilitation Commissioner (PLD 1971 S.C. 252), Province of East Pakistan v. Major Nawab Hasan Askari, etc. (PLD 1971 S.C. 82) and Sheikh Rehmat Ullah v. Deputy Settlement Commissioner (PLD 1963 S.C. 633) which reinforce the principle relied by him.
7. Learned Addl. A.G. Opposes the relief that the impugned notification dated 03.12.2010 be annulled on the ground that the petitioner is a defaulter in payment of lease rent since 1996 till date. In that status he could not have claimed or have been granted renewal of lease on its expiry in the year 2000 or thereafter. In any event the Provincial Government has by notification dated 31.12.2001 restricted the maximum size of fish farm to 40-kanals in rural areas whereas the petitioner has in his possession 66-Kanals, 15- Marlas.- Consequently, even if the petitioner was current with his rental payment, renewal of existing lease could not have been granted. He next contends that the petitioner has not acquired a vested right under the notification dated 10.12.2003 for the reason that his case is still at the initial stage of determination of his eligibility. After determination of eligibility the next step to be taken is fixation of price of the land. Neither of these crucial stages has been crossed in the, present case. Consequently, the petition wrongly makes assumptions with respect to both stages. No vested right can be claimed on the basis of assumptions.
8. Lastly, submits that at no point of time after 2003 the petitioner has sought to enforce his option.
He had waited for 7 years until the impugned notification dated 03.12.2010 was issued in order to claim the benefit offered by the notification dated 10.12.2003. In terms of the impugned notification dated 03.12.2010 the petitioner does not have a surviving lease of state land in his favour. In fact the petitioner is a lessee in default for non-payment of rent for a period of 14 years till 03.12.2010. In any event, he has unlawfully held over possession for more than ten years after expiry of his first lease.
As the petitioner is not a lessee since the year 2000, his continued possession of State land cannot be treated as regular for purposes of notification dated 10.12.2003 to establish his eligibility for proprietary rights. In the circumstances, the petitioner did not enjoy the status of a lessee on 03.12.2010. Therefore, even if, the impugned notification dated 03.12.2010 is applied prospectively, it does not in relation to petitioner affect any existing rights as a lessee. Relies on Nabi Muhammad and another v. Home Secretary, Government of West Pakistan, Lahore and 4 others (PLD 1969 S.C.
599 at page 602) and. Mst. Bibi Sayeeda and others v. State of Bihar and others (AIR 1996 S.C. 1936).
9. The arguments of learned counsel for the parties have been considered. It cannot be said that the petitioner has become a trespasser in the State land on account of his default to pay rent. The functionaries of the respondent department are complicit in the continued possession of the State land by the petitioner notwithstanding his default stretching over a period of nearly 17 years. Insofar as the filing of option by the petitioner under the notification dated 10.12.2003 is concerned, the matter of his eligibility has to be determined expressly before the petitioner's case can be considered for fixation of price of land by the DPAC, which is the second stage of assessment that must be made prior to government approval. The petitioner's case has lingered without even the determination of his eligibility. For 7 years the petitioner never took any steps through an application to higher authorities in the revenue hierarchy or through a petition before a Court of law to cause his eligibility to be determined by the respondents.
10. Without determination of eligibility for proprietary rights of the petitioner by the competent authorities it cannot be said that the petitioner has a mature right for obtaining sale of State land in his favour. A second deficiency in the petitioner's case is non-determination of price of the State land occupied by him. A relevant precedent on contrasting facts relied by the learned counsel for the petitioner is the judgment of the Hon'ble Supreme Court dated 27.09.2011 given in Civil Appeal No 304-L12009 titled Member (Colonies), BOR and another v. Nadeem Akhtar. In that case the eligibility of the respondent's grandfather Muhammad Saleem for conferment of proprietary rights in respect of Lumberdari grant land was recommended by the Collector Sargodha on 23.01.1978 by a speaking order to the Commissioner subject to approval by the BOR Punjab. The Commissioner Sargodha duly recommended the grant s proposed by the Collector. The Collector in his recommendation had noted that Muhammad Saleem fulfilled all the conditions required for grant of proprietary rights. As such there was nothing left except for a formal order of grant to be made le by the Member (Colonies), BOR. Nevertheless on account' Of lethargy of the revenue authorities the matter so delayed that Muhammad Saleem filed a writ petition in the year 2002 for the enforcement of the recommendation by the divisional authority made in his favour. After the death of Muhammad Saleem in 2006 writ petition was disposed of with a direction to the Secretary (Colonies), BOR to consider the case of the deceased in view of the allegation that he had been meted discriminatory treatment. In response, the Member (Colonies), BOR relied on the notification dated 17.01.2006 to reject the claim for proprietary rights on the ground that the said notification had discontinued the grant of proprietary rights to Lumberdars in respect of land held on lease by them. In the above circumstances, the Hon'ble Supreme Court considered the maturity of the petitioner's case, the mere formality of the steps remaining to be performed and the litigation resorted by the petitioner to claim his rights before this Court in two rounds of litigation going upto the Hon'ble Supreme Court to hold that Lumberdar Muhammad Saleem had acquired a vested right which his heir Nadeem Akhtar could enforce.
11. A vested right is created when it is mature in every respect and no contingency exists before its completion. When merely the passing of a formal order remains to finalize the status of a claimant then according to the Hon'ble Supreme Court in Nabi Ahmed and another v. Home Secretary, Government of West Pakistan, Lahore and 4 others (PLD 1969 S.C. 599 at page 616) his entitlement qualifies as a vested right. The relevant extract of the said judgment is reproduced below:-- "What is a vested right? According to the Oxford English Dictionary, "vested" means "clothed robed, dressed especially in ecclesiastical vestments.... Vested rights essentially differ.... From rights which are contingent.... That is, completely created vested interests may perhaps be defined as rights based not upon contract but upon custom". A close examination of these meanings and explanations reveals that a vested right is free from contingencies, but not in the sense that it is exercisable anywhere and at any moment."
12. However, in the present case wherein essential conditions for entitlement yet remain to be established, namely, eligibility of petitioner and price determination of State land in question, such a case cannot, to the mind of this Court fall within the ambit of a vested right.
13. Strenuous effort by the learned counsel for the petitioner, to claim that the entitlement of the petitioner has not been declined by the respondents at any stage, does not constitute proof of petitioner's completed right because his status still suffers from contingencies. The question raised in this petition is about the ineffectiveness of the impugned notification dated 03.12.2010 to defeat the petitioner's option exercised on 25.06.2004. Notwithstanding the default of the petitioner to pay rent after 1995 and the non-renewal of his lease since the year 2000, the non-determination of his eligibility for award of proprietary rights is good ground to treat his status as contingent and not finalized. Consequently, this Court is not in a position to consider the status of the petitioner as being protected by a vested right.
14. In view of the foregoing finding and the fact that the petitioner is not a current lessee but a lessee in default on State land, it cannot be said that the impugned notification dated 03.12.2010 has defeated or curtailed any existing legal right of the petitioner. Equally, upon the notification dated 03.12.2010 being applied prospectively, no legal right let alone a vested right of the petitioner stands divested or curtailed by the provisions of that notification. As a result the petition is dismissed.