' IJAZ AHMED CHAUDHRY, J.---Through this single judgment we intend to dispose of C.P.L.A. No,747-L of 2011 and C.P.L.A. No,506-L of 2012 as common questions of law and facts are involved in both these petitions.
2. Briefly the facts leading to the filing of these petitions are that District Bar Association, Khanewal filed a Writ Petition before the Lahore High Court, Multan Bench, Multan (Writ Petition No,12308 of 2010) praying therein that the petitioners be directed to allot State land to the respondent Bar Association on ownership basis for the purpose of Lawyers' Colony and the ownership possession of land in question be formally recognized over the State land with further direction that additional State land equal to land measuring 160 kanals may be reserved for the purpose of 2nd Phase of the aforesaid Lawyer's Housing Colony on the ground that in the year 1991, the then Chief Minister, Punjab, issued direction to the Revenue Authorities, Khanewal to reserve land measuring 160 kanals bearing Khewat Nos. 567 to 690, Khasra Nos.21/11 to 20, 24, 25, 22/15, 16, 27/4 to 7, 14 and 15 situated in Chak No,88/10-R, Khanewal for establishing of Lawyers' Colony. The then District Price Assessm ent Committee on 11-10-1990 fixed the price of land as Rs,2,500 per marla. However, the Commissioner, Multan Division, Multan did not agree with the recommendations of the Price Assessm ent Committee and referred the matter back to the said Committee which again assessed the price of land as Rs,5,000 per marla. Thereafter, the matter was referred to the Board of Revenue, Punjab on 12-8-2000 whereupon the said Board directed to obtain fresh market price in response to which, the District Price Assessment Committee on 6-4-2002 again fixed the price of the land in question as Rs,800,000 per acre and submitted its report to the Board of Revenue. On failure of the Board of Revenue to finalize the matter and submission of repeated applications by the District Bar Association on 21-6-2010, 9-5-1991, 26-4-2005, 30-7-2010, the respondents constrained to file Writ Petition No,12308 of 2010 before the Lahore High Court, Multan Bench, Multan which was accepted through impugned order dated 15-3-2011 by declaring the District Bar Association, Khanewal absolute owner of the land in question subject to payment of Rs,5,000 per marla and directed the Board of Revenue to issue Challan of price assessed i,e, Rs,5,000 per marla within one month from the date of passing of the order.
3. Likewise, the District Bar Association, Mianwali filed Writ Petition No,22257 of 2011 before the Lahore High Court, Lahore, raising a grievance that the then Chief Minister, Punjab, during his visit to Sargodha District on 14th and 15th April, 1995, issued directive for provision of Chambers' space for Lawyers, approval of Housing Schemes for Lawyers and registration of Lawyers' Cooperative Housing Schemes. The directive was followed by letters dated 5-7-1995-and 21-7-1998, wherein detailed report was submitted by the then Commissioner, Mianwali confirming that presently the prices have increased to a large extent and according to the Approved Value Table for the year 1997-1998, the price of land is Rs,4,51,00,000 i,e, Rs,10,000 per marla. On 20-10-2003, again the Chief Minister, Punjab directed the Senior Member, Board of Revenue and other relevant authorities to resolve the issue of petitioners' housing schemes and their chambers. Having found no response, the Bar Association filed the aforesaid writ petition before the Lahore High Court which stood disposed of vide order dated 25-1-2012 in the following manner:- "6. As the petitioners' right has already been recognized by the Chief Minister Punjab and Commissioner Sargodha Division and as such petitioners are entitled for allotment of land for establishing Lawyers Housing Scheme.
(7) In these circumstances, a committee is constituted headed by the Secretary Colonies with two members of District Collector Mianwali and President District Bar Association Mianwali for resolving the final sale of land in favour of District Bar Association Mianwali for establishing a Lawyers'
Colony in Mianwali in terms of letter dated 20-10-2003. The committee will complete the process within 6 months from today."
4. Feeling dissatisfied with the aforesaid orders, the Province of Punjab through Secretary Revenue, Punjab, Lahore, filed C.P.L.A. No,747-L/2011 (Province of Punjab through Secretary Revenue, Punjab, Lahore etc. v. District Bar Association, Kahnewal) and C.P.L.A. No,506-L of 2012 (Government of Punjab through. Chief Secretary, Lahore, etc. v. District Bar Association, Mianwali) for grant of leave to appeal against orders dated 15-3-2011 and 25-1-2012 passed by the Lahore High Court, Lahore, in Writ Petition No,12308 of 2010 and Writ Petition No,22257 of 2011, respectively.
5. Learned counsel for the petitioners contends that the learned High Court erred in law in not considering that the directive of the Chief Minister is subject to law and is not binding on the functionaries of the State; that the learned High Court failed to consider that the price assessed by the District Price Assessm ent Committee is not binding on the Member, Board of Revenue; that the learned High Court did not at all appreciate that allotment of State land is the sole prerogative of the Board of Revenue which cannot be compelled to allow certain land for certain purposes; that the respondents have failed to place on record any document confirming proprietary rights on them or on the organization; that in view of the law laid down by this Court in the case of A.R. Awan v. City District Government, Karachi (2011 SCM R 691), the High Court has no power to travel beyond prayer made in the Writ Petition; that in view of the order passed by this Court in Human Rights Case No,7581-P of 2009, State land cannot be sold by a private treaty, especially, so when an express embargo has been placed on the rights of the Board of Revenue selling the land through a private treaty; that the illegal possession of a person on the State land does not at all confer a right for allotment of State land and the learned High Court while passing the impugned order has failed to consider this aspect of the matter as well.
6. Learned counsel for Khanewal Bar Association, on the other hand, contends that land was allocated for establishment of a housing colony for the members of the Bar Association and possession thereof was handed over to them at the time of allocation of land which was developed by spending a huge sum of money; that the Bar Association accepted the price assessed by the District Price Assessment Committee; that the contract was complete by offer and acceptance and a part thereof was performed by the Government by deliverance of possession of land; thus, the members of Khanewal Bar Association became owners thereof subject to payment of assessed price of Rs,5,000 per marla and that the Chief Minister being the Administrative Head of the Province had categorically directed to transfer the land to the Association and the Board of Revenue after the order having been passed by the Chief Minister has no authority to set over the said order.
7. Learned Counsel for District Bar Association, Mianwali, contends that the Chief Minister, Punjab, during his visit to Sargodha District on 14th and 15th of April, 1995, accorded approval of the housing schemes for lawyers and registration of Lawyers Cooperative Housing Schemes through letter dated 20-10-2003 which has been implemented to the extent of private space for lawyers chambers but it has not been implemented qua allotment of land for housing schemes for the members of the Bars.
8. We have heard arguments of the learned counsel for the parties and also perused the available record. The case of both the Bar Associations is that the Chief Minister had announced establishment of lawyers' colonies in District Khanewal and Mianwali and directed the officers in the Revenue hierarchy to pinpoint land and assess price thereof. The matter remained hanging fire on one pretext or the other. Both the Bar Associations having been succeeded to have an order passed favourable from the Lahore High Court in writ petitions have laid much stress for allotment of State land announced by the Chief Minister of Punjab. During the course of hearing the question was posed to the learned Advocate-General, Punjab, as to whether State land through sale by private treaty can be allotted to an individual or a private organization and as to whether the Chief Minister of the Province has got ample powers to allot State land keeping in view the Colonization of the Government Lands (Punjab) Act, 1912. In reply to the said question the Secretary (Colonies), Board of Revenue, Punjab, Lahore, filed additional concise statement stating therein that since policy regarding grant of land by private treaty was under review, therefore, sale to private individuals/private organizations without auction was stopped till further orders vide Notification dated 8-3-2010. He also asserted that in the light of order of this Court passed in Human Rights Cases Nos.7581-P and 9059-P of 2009, scheme for allotment of land has been formulated vide Notification dated 26-11-2013 which is reproduced hereinbelow:-- "NOTIFICATION "No,918-2013/933-CL(H).---In exercise of the powers conferred on him by subsection (2) of section 10 of the Colonization of Government Lands (Punjab), Act, 1912 and in supersession of all previous notifications, Governor of the Punjab is pleased to issue the following statement of conditions for Disposal of Certain State Land in Future on the following terms and conditions: - ' LEASE
(a) Lease of State land for non-agricultural purposes ' It has been decided that purpose for which land is being leased out must be examined before making recommendations. Where construction of building is involved, the land must be sold instead of lease.
(b) Federal Government departments ' State land shall be leased out where construction is not involved for a period of five years on current market rent to be assessed by District Rent Assessment Committee and approval by Provincial Price Assessment Committee.
(c) Commercial Organization requiring right of way or temporary space for limited period ' State land which required by any commercial organization regarding right of way or temporary space for limited period may be discouraged, however, where State land is required for public path/thoroughfare shall be mutated free of cost as existing policy of colonies Department.
' Public path may be mutated only for the public purposes but not in favour of any individual or group of people or any private organization e.g. Housing Societies/Colonies, etc. Established by private organizations. The provision of access and path would not apply to commercial/cooperative co-operative housing societies.
(d) For attracting investment in backward areas or new sectors ' Statement of conditions for leasing out State land for above mentioned purposes shall be framed by the concerned department and approved by the Chief Minister through Board of. Revenue, Punjab.
(e) Lease of State land for commercial purposes ' State land may not be leased out for construction of petrol pump/ CNG Station in future. It may be sold through open auction through Punjab Privatization Board. On expiry of these leases the land shall be referred to Punjab Privatization Board for open auction in the first right of refusal to the ex-lessee.
' SALE
(i) Sale of State land of Federal Government Departments/Agencies ' According to policy instructions circulated vide memo No,5525- 75-1/234-CS, dated 23-1-1976 State land is sold to Federal Government Department/Agencies on current market price to be assessed by District Price Assessment Committee and approved by Provincial Price Assessment Committee.
(ii) Sale of State land to Provincial Government Departments for commercial purposes ' It is decided that policy may also be continued on the analogy sale to Federal Government/ Agencies.
(iii) Sale of State land through public auction ' As the Punjab Privatization Board Act has been promulgated in 2010. It has been mandated for disposal of State land through open auction.
(iv) Sale of available State land to private individuals/organizations ' Sale of State land to private individuals/private organizations on demand without open auction.
' This scheme may be stopped due to the following reasons:-
(a) At the moment, the Colonization of Government Lands (Punjab) Act, 1912, regulates the grant of State land. The tenor of the law, especially of section 10 of the Act is that State land is disposed of under a general scheme of tenancy or otherwise. The said law does not authorize the Government to dispose of State land to an individual of choice and that too, without fair competition.
(b) The argument that the sale was not tainted by discrimination because there was no other applicant competing for the sale was also untenable as the land had not been put to public auction. In fact, opportunity of competition was virtually denied to everyone else.
(c) In the absence of fair competition, the sale could not be construed as transparent.
' BY THE ORDER OF GOVERNOR OF THE PUNJAB (NASIM NAWAZ)
SECRETARY ' GOVERNMENT OF THE PUNJAB COLONIES DEPARTMENT ' No, and date even: ' A copy is forwarded to the Superintendent, Government Printing Press, Punjab, Lahore for publication in the Extra Ordinary issue of the Punjab Gazette and supply 200 copies thereof for official use.
(NASIR JAMIL KHAN)
Additional Secretary Government of the Punjab Colonies Department"
9. According to the aforesaid notification sale of available State land to private individuals/organizations on demand without open auction has been stopped for the following reasons:-- "(a) At the moment, the Colonization of Government Lands (Punjab) Act, 1912, regulates the grant of State land. The tenor of the law, especially of section 10 of the Act is that State land is disposed of under a general scheme of tenancy or otherwise. The said law does not authorize the Government to dispose of State land to an individual of choice and that too, without fair competition.
(b) The argument that the sale was not tainted by discrimination because there was no other applicant competing for the sale was also untenable as the land had not been put to public auction. In fact, opportunity of competition was virtually denied to everyone else.
(c) In the absence of fair competition, the sale could not be construed as transparent."
10. In view of the aforesaid Notification both the organizations have IB no case for allotment of State land as the grant/allotment of State land is not a right of an individual and, in fact, it is a grace. No person shall have any right or title in the State land until a written order has been passed and allottee/grantee has lawfully taken over the possession but in the instant case neither the land was allotted to both the organizations nor they lawfully acquired possession thereof. But the learned High Court has erroneously observed in the impugned judgment that the matter was finally decided between the parties and was concluded/finalized whereas the fact of the matter is that the two Bar Associations were never allotted the land in dispute or delivered its possession. Thus, the arguments of the learned counsel for the respondents Bar Associations and the observations of the learned High Court on the letter dated 9-5-1991 are against the facts as the said letter was written by the Deputy Commissioner, Khanewal by making proposal for such allotment and it cannot be said to be an allotment unless and until it is approved by the competent Authority.
Moreover, it is a matter of record that summaries for such approval were declined thrice by the Chief Minister, Punjab.
11. So far as the question raised by this Court during hearing of the instant petitions to the Advocate General as to whether the Chief Minister of the Province has got unfettered powers to allot State land keeping in view the Colonization of Government Lands (Punjab) Act, 1912; as to whether the Chief Executive of the Province is free to make announcement of grant of land for housing societies of various professionals with particular reference to the Lawyers Housing Societies; and as to whether the Chief Minister is obliged to honour such commitment, suffice it to observe that the then learned Advocate-General, Punjab, made a reference to the Chief Minister regarding such commitment made by him during his visit to District Khanewal and District Sargodha whereon a summary was moved to the Chief Minister and his order was conveyed to the Advocate-General Punjab that Government is not inclined for the sale of State land for establishment of Lawyers'
Colony or for that matter to any private organization/individual without competitive process of open auction. Since the Government of Punjab has formulated a policy for sale/allotment of State land through public auction and Punjab Privatization Board Act has been promulgated in 2010, therefore, the respondent Bar Associations are not entitled to any such allotment. The learned High Court has accepted the Writ Petitions filed by the said Bar Associations without considering the fact that the Government cannot make such sale without observing the process chalked out in the policy and the promulgation of Punjab Privatization Act, as such, the impugned judgments are not sustainable in law. It is also to be noted here that no final steps were taken before the policy was announced for the allotment of plot through which the Government can only allot the land in a specific manner and there special provision for allotment of land for housing scheme of Lawyers and this Court has already held vide order dated 20-11-2012 passed in Human Rights Cases Nos.
7581-P and 9059-P of 2009 etc. As under:-- "The learned Advocate-General Punjab informed that draft policies in respect of allotments/leases of State lands have been approved by the Cabinet in its meeting held on 11-3-2013. He has referred page 2 of the C.M.A. 1878 of 2013 which contains the draft notifications and stated that subject to its approval, the same shall be implemented. It has been pointed out to him that in respect of formulating the policies, the Court has nothing to do with it as it is the job of the government. However, as explained that the policy is in the public interest, the same may be notified accordingly.
(23 The learned Advocate-General, Punjab further stated that as far as the issue regarding unfettered power of the Chief Minister to allot State lands is concerned, no such powers are conferred upon him under the law, therefore, no such issue exists."
12. The argument of the learned counsel for the respondent Bar Associations that since the Chief Minister had announced allotment of land to the Bar Associations for establishment of Housing Societies for the lawyers is concerned, the summary moved in this behalf to the Chief Minister to honour his commitment for allotment of State land to the respondents Bar Associations-as announced by him, was returned in the negative, as such, the argument has no force at all.
13. Looking at the powers of the Chief Minister for allotment of public property, here a reference to the case of lqbal Hussain v. Province of Sindh through Secretary, Housing and Town Planning, Karachi and others (2008 SCM R. 105) will be useful wherein this Court has observed as under:-- "3. We are in complete agreement with the view taken by the Division Bench of the High Court when it says that public functionaries including the Chief Minister can deal with the public property only under a prescribed procedure within the parameters of law under a duly sanctioned scheme and not at their whims. Even if such order was passed by the Chief Minister in favour of the petitioner, authorities concerned would not be bound to follow such illegal and void order of a superior authority. It would rather be in the exigencies of good order of administration and their duty to point out to the high-ups that they were acting in excess of their lawful authority and in violation of law and the constitutional mandate. They may be apprised of the legal consequences flowing from such acts. The compliance of any illegal and arbitrary order is neither binding on the subordinate forums nor valid in the eyes of law. Reference in this behalf may be made to decision of this Court in (i) Abdul Haq Indhar v. Province of Sindh (2000 SCMR 907) and (ii) Taj Muhammad v. Town Committee (1994 CLC 2214)."
' Thus, examining the case of the respondents from any angle, no case for upholding the impugned judgment in their favour is made out.
14. In view of the discussion made above, we, while converting these petitions into appeals, allow the same, set aside the judgments of the learned High Court passed in Writ Petitions Nos.12308 of 2010 and 22257 of 2011, respectively, and dismiss both the Writ Petitions, being devoid of merit.