' MAQBOOL BAQAR, J.---The petitioners, in the above three petitions, have assailed the judgment dated 20-8-2014, in terms whereof a learned Division Bench of the High Court of Balochistan, disposed of Constitution Petition No. 332 of 2012 filed by petitioners in C.P.L.A. No. 410-Q of 2004, whereby the said petitioners, inter alia, sought a declaration that order of allotment of land bearing Khasra No.2250/517, situated in Mahal Sirki KaIan Tappu Saddar, District Quetta in favour of one of the respondent namely Sultan Ahmed (being respondent No.9 in the said petition) and its subsequent transfer in favour of respondents Nos.10, 11 and 12, has been passed illegally and by misuse of authority, and to direct the concerned authority to allot the same to the petitioners, being the petitioners before us in C.P.L.A. No.410-Q of 2014.
2. The facts of the case, in brief, are that the land bearing Khasra No.517, measuring 6 rods and 36 poles situated in Mahal Sarki KaIan, Mouza Sirki, Tappu Saddar, Tehsil and District Quetta, owned by the predecessor-in-interest of the petitioner in C.P.L.A. No.410-Q of 2014 was acquired by the Government of Balochistan under the Balochistan Land Acquisition Ordinance, 1979, for construction of a bridge over a railway track to connect Zarghoon Road and Sariab Road in Quetta.
The transfer of the land in favour of the Government of Balochistan was accordingly recorded in the revenue record. The overhead bridge was constructed by Quetta Development Authority ("QDA"), however, a portion of the aforesaid acquired land, measuring 30,492 sq.Ft. ("the land"), which remained unutilized and was reserved for the future expansion of the bridge, more fully described in the first para of this order, was purportedly sold to respondent-Sultan Ahmed through a purported sale deed dated 26-4-2007, purportedly executed by QDA in favour of respondent- Sultan Ahmed. At the relevant time the petitioner Maqbool Ahmed Lehri was the Nazim, City District Government, in which capacity he held the post of Chairman QDA also. Neither was any advertisement placed by QDA as required in terms of clause (a) of subsection (2) of section 113 of the Quetta Development Authority Ordinance, nor was the land offered to those from whom the same was acquired, before the purported sale.
3. However, before we proceed any further, it would be relevant to briefly record the history of the case; in, fact, prior to acquiring the land through the purported sale deed, it was in the year 1987 that respondent-Sultan Ahmed procured a purported allotment of the land from petitioner Maqbool Ahmed Lehri, while the later was Mayor Municipal Corporation Quetta ("MCQ"), and as such the purported lease deed was executed by the said petitioner in favour of the respondent- Sultan Ahmed for a period of 30 years on 6-5-1990. For such allotment respondent-Sultan Ahmed initially applied to the Minister for QDA/WASA Balochistan, who sought comments from MCQ. The Municipal Engineer MCQ, though in his note stated that the ownership of the land is of QDA, yet recommended leasing out the land in favour of respondent-Sultan Ahmed, and sought permission to allot/lease out the land and to execute such agreement in favour of respondent-Sultan Ahmed.
The petitioner Maqbool Lehri who, as noted above, was Mayor MCQ, endorsed the above for the approval of the Minister for QDA/WASA. Thereafter, respondent-Sultan Ahmed applied to the Chief Minister for allotment of the land for thirty years enabling him to establish and run a nursery, the Chief Minister, obliged by endorsing "Please allot for thirty years". Whereafter, the allotment and lease as noted above were granted. The lease, as disclosed by MCQ in its written statement in Suit No.979/1993, was however terminated on 19-4-1993. On the said very date, i.e. 19-4-1993, MCQ also initiated criminal proceedings under section 133, Cr.P.C. For resumption of possession of the land.
Respondent-Sultan Ahmed thus, on the one hand, on 20-4-1993, filed the above noted suit in the Court of Civil Judge-I, Quetta for declaration and permanent injunction against the Administrator, MCQ, Municipal Magistrate, Illaqa Magistrate and the concerned SHO, in respect of the land in question, and on the other hand filed a Criminal Revision before the Additional Session Judge, Quetta. In his suit respondent-Sultan Ahmed alleged that the defendants are attempting to dispossess him from the land. Upon knowledge of the suit QDA joined the proceedings as defendant No.5. In their written statements the defendants denied respondent-Sultan Ahmed's claim over the land. MCQ in its written statement averred that the purported lease deed has been terminated on 19-4-1993, and that MCQ is not the owner of the land, and was not authorized to execute the purported lease, and further that the lease "is neither properly stamped nor registered as required under the law", whereas QDA in its written statement claimed that the lease is "patently void". The trial Court, after hearing the parties, through order dated 26-10-1995, held that admittedly QDA is the owner of the land and since the purported lease has been cancelled by the Administrator, MCQ on 19-3-1993, respondent-Sultan Ahmed has no locus standi and his possession of the land is unauthorized, and dismissed the suit. Upon an appeal filed by respondent-Sultan Ahmed on 8-5-1996 the dismissal order was set aside and the suit was remanded to the trial Court. The aforesaid criminal revision was dismissed by Additional Sessions Judge on 30-11-1993. Through judgment dated 9-1-1994, Criminal Miscellaneous Quashment Application filed by respondent-Sultan Ahmed in the High Court of Balochistan was also dismissed.
Criminal Petition filed by respondent-Sultan Ahmed against the said judgment before this Court was, on 23-11-1994, disposed of on the basis of a statement of the Additional Advocate General, that no proceedings under section 133, Cr.P.C. Are pending against respondent-Sultan Ahmed.
4. In his letter dated 29-6-1996 addressed to Chief Engineer/ Director (Estate), QDA, Quetta, the Administrator MCQ conveyed to the latter that the propriety rights of the suit land does not belong to the MCQ and therefore any agreement executed by the Ex-Mayor MCQ with respondent-Sultan Ahmed is of no legal effect and the same being void is not required to be cancelled.
5. Respondent-Sultan Ahmed was, through order dated 7-11-1997, allowed to withdraw the aforesaid suit with permission to file a fresh suit, the withdrawal was however allowed subject to payment of cost of Rs.25,000. He, however, did not file a fresh suit in respect of the action/decision impugned through the suit withdrawn.
6. Under by the above cancellation, respondent-Sultan Ahmed in his pursuit to grab the suit land, after waiting for an opportune time, on 1-4-1997 submitted another application to the Chief Minister, where he concealed the termination of his purported allotment/lease and all the above noted subsequent events, and simply claimed that though the suit land was allotted to him for nursery by the former Minister Local Bodies through the former Mayor, MCQ in the year 1991 but some people are creating difficulties in his way and requested the Chief Minister to order allotment of the land, and for direction to the QDA to settle the price through negotiation with him. The then Chief Minister sought report in the matter. Unfortunately, the Chief Minister was not apprised of the correct legal and factual position in the matter, and on 28-9-1997, he passed an order as follow:- "This is an old case and the Authority has already given the approval for lease of land and settlement with the applicant. Now, since the applicant wants to buy the land, the Director General, QDA may settle the matter by negotiations with the applicant, keeping in view the rates of Commercial and other categories in mind."
' However, pursuant to the above orders, the Chief Secretary, Balochistan, through his note dated 29-9-1997, sought information regarding the legal claim of the Government over the land. The Secretary Local Government, instead of meeting the query, observed that the file was sent to the government by mistake and referred the same to QDA "for necessary action". Whereupon the Director (Estate) Commercial, QDA, suppressing all the crucial aspects of the matter as noted above, simply stated that the land in question is in possession of respondent-Sultan Ahmed since 1991, and forwarded the aforesaid purported lease deed executed by the former Mayor, MCQ in favour of respondent-Sultan Ahmed. Through letter dated 21-10-1997, Director General, QDA in purported compliance of the Chief Minister's order dated 28-9-1997, called respondent-Sultan Ahmed for negotiations. In the meanwhile, the so called prevailing market rates of the residential and commercial lands in the vicinity of the subject land were obtained by QDA through Deputy Commissioner, Quetta, who through his letter dated 28-11-1997, conveyed the rate of residential land in the vicinity as being Rs.200 per sq.Ft and that the rates of such commercial lands ranges between Rs.200 to 500 per sq.Ft. A summary was then prepared and submitted before the Chief Minister, Balochistan saying that after negotiations with respondent-Sultan Ahmed, the rates of the land have been agreed at Rs.400 per sq.Ft for commercial portion and Rs.150 per sq.Ft for residential portion. The Chief Minister, as noted by his Private Secretary on the relevant file on 6-4- 1998, ordered that "a case for lease rent for 30 years at the rate of Rs.15,000 per annum may be processed and resubmitted for perusal/order". On 29-5-1998; the Chief Secretary, Balochistan in his bid to save the land from being dolled out as above, ordered as follow:- "Please submit a summary to the Chief Minister pointing out the implications of this decision which will impact adversely on the QDA as the land is much too valuable to be leased out like that; and besides there is no precedent to return the acquired land paid for by public agency like QDA. Also please refer to Land Acquisition Act."
7. However, through letter dated 20-8-1998, DG, QDA offered the price of the land @ Rs.450 per sq.Ft for commercial portion and Rs.200 per sq.Ft for residential portion, such portions having been earmarked by the Incharge Town Planning, QDA, and required respondent-Sultan Ahmed to respond within a week's time. It may be significant to note here that no where it is even mentioned as to when, how, in what manner, on what basis, under what law, rules and regulations and/or policy, and under what authority the land was bifurcated into commercial and residential categories. It is also not explained as to on what basis and under which criteria the sizes, location and demarcation of the two purported categories was affected. In response respondent-Sultan Ahmed, through letter dated 31-8-1998, stated that the agreed rate being Rs.400 per sq.Ft for commercial portion and Rs.150 per sq.Ft for the residential area, the offer be amended accordingly.
The matter of allotment was placed before the Governing Body, QDA in its meeting held on 1-1-1999, however, the Governing Body rejected the very proposal to sale and decided that:- "(i) The land occupied illegally by Mr. Sultan Ahmed son of Shadi Khan may be got vacated with the help of concerned authorities.
(ii) The construction of second phase of the bridge may be examined and report be submitted."
8. Through letter dated 30-4-1999, DG, QDA informed respondent-Sultan Ahmed of the above decision and that the aforesaid letter dated 20-8-1998 be treated as withdrawn.
9. However, the matter did not rest here, as respondent-Sultan Ahmed, suppressing the above decision of the Governing Body and all the other adverse developments, and despite the fact that upon the above decision there remained no basis/offer (of whatever worth same might have been), and thus there was absolutely no question of making any payment towards the land through an undated letter requested the Chief Minister for an order directing the DG QDA to allow him to deposit 50% of the price of the land. The Chief Minister through letter dated 30-6-2003, directed that "the applicant be allowed to deposit the cost of the plot as per agreed rate". It may be noted that the rates were purportedly agreed six years before the said order and that in the meanwhile the value of the land appreciated substantially.
10. However, still respondent-Sultan Ahmed did not make any payment and wrote yet another undated letter to the Chief Minister stating that "unfortunately the applicant could not deposit the said cost of land". The Chief Minister once again obliged the applicant, and on 23-8-2004, directed DG QDA, to grant permission to the applicant to deposit the price of the plot as "already agreed".
11. A Summary dated 27-8-2004, was then submitted before the Chief Minister, which, inter alia, disclosed that respondent-Sultan Ahmed, has through an application approached NAB and expressed his willingness to deposit the entire amount of the present market value of the land, and that in the event he is unable to make such payment, he shall surrender the land to QDA, whereupon the NAB sought comments from QDA and that QDA conveyed its no objection, subject to approval by its governing body, but respondent-Sultan Ahmed surrendered the land to QDA. The summary placed before the Chief Minister two options, being (i) restoration of the offer made to respondent-Sultan Ahmed earlier, or (ii) to sale the land at the prevailing market rate subject to the approval of the Governing Body QDA. The Chief Minister endorsed the following note on the summary:- "para 5 to be definitely to be xxxxxxx [deleted] as proposed for xxxx [deleted) for restoration"
12. It was after a lapse of 17 months of the above, and only after the petitioner Maqbool Ahmed Lehri become Nazim, MCQ, as well as Chairman QDA, that the matter was purportedly placed before the Governing Body of the QDA, in its meeting held on 28-1-2006, which meeting was convened only for the approval of a revised budget, that the issue of the subject land was put before the Board by way of an "ex-agenda item" under the heading "Confirmation of orders of Chief Minister Baluchistan - land of Mr. Sultan Ahmed" and as per the purported minutes of the meeting, the board purportedly decided as follows:- "The house confirmed the directives of Hon'ble Chief Minister Balochistan issued vide U.O.
NoPSCM/1-1/2003/2078 dated 13-6-2003 and U.O. No.PS-CM/1-1/2004 dated 1-9-2004 and also confirmed the letter No.2-395/93(QDA/E(C)/760-62 dated 18-9-2004 issued by QDA. It was further decided that the allottee may deposit the balance cost of land as per direction of the CM."
13. Regarding the above meeting/proceedings, it is pointed out that it was the very first meeting under the chairmanship of petitioner Maqbool Ahmed Lehri. It is alleged that the members of the Governing Body who participated in the meeting stated before the NAB authorities that neither was any issue pertaining to the land/ ex-agenda item", discussed in the said meeting nor was any such proposal/item approved. It is farther contended that under the relevant rules, the minutes of the meeting of the Governing Body were/are supposed to be signed either by the Director Administration or by DG QDA, but the minutes in question have purportedly been signed by the Chairman, Maqbool Ahmed Lehri, the petitioner. It is further pointed out, and as is also evident from the relevant extract of the minutes of the meeting, the earlier decision of the Governing Body rejecting the proposal of sale of land to respondent-Sultan Ahmed and for getting it vacated and submitting a report for the expansion of the bridge was concealed from the Board.
14. The purported sale deed was then purportedly executed by QDA on 26-4-2007, however, since the same did not specify therein the land purportedly sold, a deed of rectification was sought to be executed. However, DG QDA through letter dated 13-2-2010 informed the concerned Sub-Registrar that the said deed of rectification has not been issued with his approval and is therefore not be entertained. He further cautioned the Sub-Registrar that "The sale has some doubts and objection which are being examined". However, it seems that such deed of rectification had been registered by the time the above letter was sent.
15. As noted above, admittedly the land was owned neither by MCQ nor by QDA, and was/is owned the Government of Balochistan and therefore none of the above bodies was either competent or authorized to sale the land, even otherwise in terms of section 113 of the Quetta Development Authority Ordinance, 1978, which reads as follows:- "113. Power to dispose of land-
(1) The Authority may retain, or may lease, well, exchange, rent or otherwise dispose of any land vested in or acquired by it under this Ordinance.
(2) Whenever the Authority decides to lease or sell any land acquired by it under this Ordinance from any person, it shall-
(a) give notice through advertisement in newspapers published in the Quetta City,
(b) offer to the person or persons, from whom the land has been acquired, or their heirs, executors or administrators, a prior right to lease or purchase such land, at rate to be fixed by the Authority, if in its discretion it determines that such lease or sale is in the public interest."
' Firstly, it is an essential pre-requisite to determine as to whether or not the sale of any land vested in or acquired by QDA would be in the public interest, secondly, it is mandatory to publish notice of the proposed sale by QDA in the newspapers published in the city of Quetta, and thirdly, and in the foremost, it is essentially required that in case the land is an acquired land, it be first offered to the person(s) from whom the same has been acquired, However, as evident from the foregoing, none of the above essential statutory requirements were met in respect of the transactions in question.
16. It is also crucial to note that since admittedly the land was/is owned by the Government of Balochistan, it was to be dealt with under and in terms of Balochistan Land Lease Policy, 2000 ("the policy"), formulated in pursuance of subsection (2) of section 10 of the Colonization of Government Land Act, 1912, and published in the Balochistan Gazette on 1-12-2000. Clause 4(2) of which policy mandates that "all state land falling within five miles of the limits of Municipal Committee/Municipal Corporation and within three miles of Town Committee will be reserved for further utilization". The land being situated within the city of Quetta, thus fell under the above restriction/prohibition and was therefore not saleable at all. The land, as noted earlier, was part of the land acquired for the construction of a bridge and after construction of the first phase was reserved for the construction of second phase thereof, the above fact, as noted earlier, was also acknowledged by the Governing Body of the QDA in its meeting held on 1-4-1999 and thus, in view of the clause 3(2) of the policy, which prescribes that land can only be leased provided it was not required for "public building, other public sector projects", could not have been leased out at all.
17. Furthermore, even the lease permissible under the policy, can, in terms of sub-clause (1) of clause 5 of the Policy, be granted for a period of thirty years only. Rates of the yearly rent money, as stipulated by sub-clause (2) of clause 5 of the Policy, is to be determined by a Committee, keeping in view the market value/performance. The policy in terms of sub-clause (3) of clause 5 further requires that "the highest standard of transparency will be ensured" and "after giving due publicity" and further that the lease money is to be charged "as per market value or through the process of auction". In terms of terms of clause 10 of the policy there is a clear prohibition against assignment/sub-letting or transfer of the lease land or any part thereof by the lessee the authority for grant of lease as designated through clause 16 of the policy, is "Collector as defined under the Land Revenue Act, 1967". However, as evident from the foregoing narration of events, every single provision of the policy has been trampled in the present case.
18. The land, as noted earlier, was compulsorily acquired by the Government of Balochistan for a public purpose, "public purpose" having been exempted from the bar against compulsory acquisition as prescribed by Article 24 of the Constitution, which provision guarantees protection of propriety rights in accordance with law, and therefore, not utilizing the land for the public purpose and selling the same to private person(s) is violative of the object, spirit, principle and the purpose of the provisions of Article 24 of the Constitution, in view whereof, the land, even in case the same would not have been required for any public purpose, and even otherwise could have been lawfully sold, the person(s) from whom the same was acquired ought to have been provided an opportunity to participate in the process so as to enable them to make an offer for its purchase in accordance with law. The sale in question is, therefore, violative of the mandate of the constitution also.
19. From the narration of the facts and events hereinabove, it can been seen that not only the policy was violated and contravened but prima facie the subject transactions were affected through fraudulent machinations. The suppression of the termination and cancellation of the purported lease and rejection of proposal for sale by the Governing Body QDA, have been spelt out from the above narration quite clearly. It has not been explained as to how, why, under what law, rule and regulations or policy, and under what authority the land reserved for a public sector project was designated/bifurcated into/as "Residential" and "Commercial" categories, and as to under what criteria and on what basis the area and locations/dimensions of such purported categories were determined/affected.
20. Though illegally, however, the Chief Minister Balochistan clearly directed that "the case for lease land for 30 years at the rate of Rs.15000 per annum may be processed" the purported sale is therefore also contrary to and violative of the order of the Chief Minister.
21. As per the NAB, the members of the Governing Body, who participated in the meeting dated 1-4- 1999, disclosed before the NAB that neither they had any notice of the issue pertaining to the land being taken up in the aforesaid meeting, nor the matter/issue was in fact taken up or decided, as wrongly mentioned in the purported minutes of the meeting. It is further alleged that the DG QDA who also is a member of the Governing Body QDA, though his letter dated 29-9-2006, confirmed that the issue of the land was not discussed in the meeting. The involvement, interest and enthusiasm of the petitioner Maqbool Ahmed Lehri in this matter from the very beginning can been seen from the facts that it was him who as Mayor MCQ, forwarded the recommendation of the Municipal Engineer for leasing the land in favour of respondent-Sultan Ahmed and for executing the agreement accordingly, for the approval of the concerned Minister, and that, as evident from the approval note itself, the approval was granted on Lehri's recommendation. And thereafter the purported allotment letter and the purported lease deed was also executed by him. Furthermore in the process of the subsequent transaction, i.e. The execution of the sale deed, the matter remained pending for about seventeen (17) months and was purportedly placed before the Governing Body, QDA, immediately upon petitioner Maqbool Ahmed Lehri assuming the office of the Chairman QDA, by way of "ex-agenda item", where purported approval of the sale was purportedly obtained, by suppressing the adverse decision made by the Governing Body, QDA earlier. The above purported approval and the consequential purported sale was in conflict with the earlier decision of the QDA and MCQ and their stance in the relevant proceedings before the various courts. The land was doled out at the rate purportedly assessed seven years earlier, and to further unduly favour the beneficiary larger part of the land was designated as residential to which category lower rate was applied. The above misuse of the authority, prima facie appears, was not just to benefit respondent-Sultan Ahmed, the purported allottee, but was so exercised for the benefit of a real brother and two paternal cousins of petitioner Maqbool Ahmed Lehri, in whose favour the land was subsequently transferred, through an attorney of respondent-Sultan Ahmed, which attorney also is a cousin of petitioner Maqbool Ahmed Lehri, Furthermore, as noted earlier, the land was purportedly sold to respondent-Sultan. Ahmed on 26-4-2007, however, the above power of attorney was executed on 17-4-2006, a year before the purported sale. The execution of the Power of Attorney clearly demonstrates strong confidence of the beneficiary that the land shall surely be allotted to respondent-Sultan Ahmed, otherwise there was no question of appointing an attorney to deal with something that did not exist. Furthermore, it seems that the power of attorney was obtained to secure the interest of the real beneficiaries. In the NAB reference, it has been alleged that respondent-Sultan Ahmed, being a small time motor mechanic, had no funds to pay for the land and had in fact acted as a front man for the petitioner Maqbool Ahmed Lehri. Reference in this regard has been made to the statement recorded by respondent-Sultan Ahmed before the learned High Court of Balochistan in Constitution Petition No.332 of 2012. In this regard the impugned judgment has also noted, that the various signatures said to be inscribed by respondent-Sultan Ahmed on the applications made by him to the Chief Minister from time to time, neither tallies with each other, nor with his admitted signature on record. However, the question whether respondent-Sultan Ahmed acted as a front man for the petitioner Maqbool Ahmed Lehri, and the other above noted issues ancillary thereto, can only be determined after recording of evidence by the NAB- Court.
22. In the case of Al-Shafeeq Housing Society, Hyderabad v. Pakistan Medical Association, Karachi and 5 others (PLD 1992 SC 113), where the questions of restoration of the respondent's allotment and also of the legality and validity of the appellant's allotment were involved. This Court, whilst observing that Government, or for that matter the Chief Minister had no power to either annul the respondent's allotment or to make allotment to the appellant, which was so done in that case, repelled the objection to the maintainability of the petition before the High Court and held such questions to be a question pertaining to statutory duty and dismissed the appeal. In the present case also, as can be seen from the above discussion, the statutory provisions have been violated, and in fad the allotment has been made in violation of the constitutional mandate also. The allotment in question being wholly illegal, incompetent and void has rightly been declared and treated by the learned Division Bench as such, and as a natural and legal consequence thereof has rightly ordered cancellation of the purported sale deeds of the land in favour of the subsequent lessees, being petitioners Nos.1 to 3, in C.P. 1774/14. Further more since the land has been acquired for a public purpose i.e. Construction of a bridge and is now reserved for expansion of the bridge constructed on a portion of the acquired land, cannot be leased/sold to any private individual, and/or for any private purpose/commercial venture or for any illegal and undue enrichment, such being the mandate of Balochistan Land Lease Policy, 2000. Request of the petitioners in C.P.L.A. 410-Q of 2014 for an order directing allotment of the land to the said petitioners was thus rightly declined.
23. In view of the foregoing, the petitions are dismissed and leave refused.