Shujaat Ali Khan, J: - Through the present Intra Court Appeal the appellant has assailed judgment dated 11.06.2003, passed by the learned Single Judge in chambers whereby writ petition (bearing No.298 of 1984) filed by the appellant was dismissed.
2. Tersely, the facts, as gleaned out from the instant appeal, are that the Administrator Municipal Committee, Faisalabad later on named as Municipal Corporation, Faisalabad (hereinafter to be referred as the appellant) moved a request before the Deputy Commissioner, Lyallpur (now Faisalabad) for possession of certain land to construct buildings for public amenities. The request of the appellant was forwarded by the Deputy Commissioner, Lyallpur to the Under Secretary to Govt. of the Punjab, Settlement & Colonies Department, Lahore, vide letter bearing No.539/G dated 20.11.1954.
In response thereto, the Assistant Secretary to the Government of Pakistan through letter dated 30.06.1959 conveyed to the Custodian of Evacuee Property, Lahore, that sale of land measuring 152- Acres 5 Kanals and 16-Marlas in favour of the appellant was approved subject to payment of price at market rate prevalent at that time. Since the appellant failed to deposit the sale consideration, the Committee headed by the Member (Colonies), Board of Revenue, Punjab, Lahore, in its meeting held on 01.06.1982, besides other decisions, recommended for cancellation of sale approved in favour of the appellant. Aggrieved by the said decision of the Committee, the appellant filed above captioned writ petition before this Court which was dismissed by the learned Single Judge in Chambers vide judgment dated 11.06.2003; hence this appeal.
3. Learned counsel representing the appellant submits that the learned Single Judge in Chambers did not appreciate that the meeting held on 01.06.1982 was conducted without participation of the appellant despite the fact that after approval of sale in its favour it was a necessary party; that the learned Single Judge in Chambers did not attend to the fact that as the land in question fell within the municipal limits of Faisalabad the same was not available to form part of the compensation pool in terms of section 4 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958; that after approval of sale by the Central Government in its favour the appellant has incurred millions of rupees to set up a market over there, thus, the recommendations of the Committee regarding cancellation of sale in favour of the appellant would deprive it from huge investment; that while passing the impugned judgment the learned Single Judge in Chambers has not appreciated the law laid down in the cases reported as Muhammad Yaqub and 13 others v. The Municipal Committee, Lyallpur (PLD 1971 LHR 664) and Mirza Sardar Muhammad and others v.
Pakistan and others (1970 Law Notes 736) in its true perspective; that as the appellant has already deposited a handsome amount towards part payment of the amount of consideration cancellation of sale accrued in its favour is not justifiable; that the sale in favour of the appellant was approved by the Central Government, thus, the Committee comprising of the authorities representing provincial government was not competent to cancel the same; that mere non- payment of sale price is not sufficient to cancel the sale approved in favour of the appellant; that the learned Single Judge in Chambers did not adhere to the fact that as a matter of fact the dispute was between two government departments, thus, the authenticity of sale was not to be adjudged on the basis of principle enunciated for a transaction between private parties.
4. On the other hand, learned Law Officer, while defending the impugned judgment submits that the same is unexceptionable. Adds that there is no proof of part payment of consideration, thus, no premium can be taken by the appellant on the said ground. Further adds that after exchange on 03.01.1958 the Settlement and Rehabilitation department ceased to have jurisdiction over the land rather the Provincial Government (Colony Department) was competent to deal with the said property. Contends that since the sale in favour of the appellant was subject to payment of consideration, the same having not been deposited by it, no vested right accrued in its favour.
Adds that mere raising of construction without any document of title does not confer any right in favour of the party raising such construction and that the appellant was debarred to challenge the Minutes of the Meeting as no order pursuant thereto has been passed. Lastly submits that the contentions urged by learned counsel for the appellant require recording of evidence which exercise cannot be undertaken in Constitutional jurisdiction, thus, the learned Single Judge in Chambers has rightly dismissed the petition filed by the appellant.
5. We have heard learned counsel for the parties at considerable length and have also gone through the documents annexed with this appeal as well as those forming part of the Writ Petition and have also gone through the case law cited by learned counsel for the appellant with his able assistance.
6. A perusal of letter dated 30.06.1959, addressed by the Assistant Secretary to the Govt. of Pakistan to the Custodian of Evacuee Property, Lahore, shows that permission for sale of evacuee land measuring 152-Acres, 4-Kanals and 16-Marlas was accorded in favour of the appellant for establishment of Municipal Market subject to payment of price according to the market rate prevalent at that time. In this regard, following portion of the above said letter is of vital importance: - "I am directed to forward herewith a copy of letter No.1677-RB-IR-59 dated the 21st November, 1959, with enclosures from the Secretary, Revenue and Reh: Department Lahore on the above subject and to say that in exercise of the powers conferred by section 25(2)(S) of the Pakistan (Administration of Evacuee Property) Act, 1959 (XII) of 1958) the Central Government are pleased to accord permission for the cutright sale of evacuee land measuring 152 acres 4 kanals and 16 marlas situated in Lyallpur for the establishment of Municipal Market at current market price to be determined by you."
7. A perusal of afore-quoted portion renders it indubitably clear that the approval of sale in favour of the appellant was subject to payment of sale price at the rate prevalent at that time. To have the fruits of the approval in its favour, the appellant was bound to act strictly in line with the approval granted in its favour. There is nothing on record to show that the appellant ever deposited the amount of consideration. It is well entrenched by now that for a valid transaction the payment of amount of consideration is one of the important ingredients in terms of section 54 of the Transfer of the Property Act, 1882, and in case the same is not paid the transaction carries no weight in the eye of law. Reliance in this regard is placed on the cases reported as Ghulam Mustafa through L.Rs and other v. Muhammad Yahya and others (2013 SCM R 684), Anwar Sajid v. Abdul Rashid Khan and another (2011 SCM R 958) and SAEE by legal heirs and 2 others v. Mst. Sultan Bibi by legal heirs and 14 others (2003 SCM R 810). In the case of Anwar Sajid (Supra), the apex Court of the country while dealing with consequence of non-payment of consideration amount has inter-alia observed as under: - "This reflects that the petitioner was not ready and prepared to pay the amount by the cut off date and even after the extended time, he admittedly failed to perform his part as per the contract.
Learned counsel for petitioner took a plea that since the respondent was bound to show to him the documents ready on the cut off date before the concerned officer of Defence Housing, Authority which condition, the latter failed to fulfil, the petitioner could not be held responsible to have not performed his part of contract. We are not persuaded to accept this plea of learned counsel.
Petitioner has, in the first place, to stand on his own legs and to show his bona fides that on the stipulated date he was himself present before the concerned officer ready with money payable to the other side and that being so abiding by the terms and conditions of contract, found the seller absent. In this nothing was brought to our notice to lean on the side of petitioner."
If we adjudge the plea of the learned counsel for the appellant on the touchstone of afore-quoted judgments, the stance in absence of any proof of payment of sale price cannot be given any weightage.
8. Now coming to contention of learned counsel for the appellant that the appellant having invested millions of rupees cannot be deprived of the possession over the land in question. In this regard, we are of the view that if a party opts to incur an amount of whatever magnitude, without execution of a document of transfer the said fact cannot validate the contract until and unless all the terms & conditions of the said contract are fulfilled by the party concerned. This being so, the appellant cannot be treated differently simply on the ground that after raising certain construction over the land the sale approved in its favour cannot be withdrawn.
9. As far as plea of the appellant that as the approval for sale was accorded by the Central Government the Provincial Government had no authority to move for its revocation, is concerned, suffice it to observe that communication dated 03.01.1958 addressed by the Officer on Special Duty, Govt. of Pakistan, Ministry of Rehabilitation, to the Custodian of Evacuee Property, Lahore, establishes that the evacuee land measuring 5235 acres round about Lyallpur was exchanged with land measuring 7150 acres situated in various parts of district Lyallpur (Now Faisalabad) under section 25(2)(a) of the Administration of Evacuee Property Act, 1959. It has not been denied that the land, subject matter of the instant appeal, was not part of the land transferred in favour of the Colony Department through the afore-referred letter. Moreover, the letter addressed by the Administrator, Muncipal Corporation, Faisalabad to the Secretary (Acquisition) to the Member Board of Revenue (S&R) Punjab, Lahore, also lends support to the respondents' stance that the land stood transferred to the provincial government. In this scenario, the argument advanced by learned counsel for the appellant has no worth at all.
10. Though learned counsel for the appellant has repeatedly argued that the appellant raised construction at the site after partial payment of amount of consideration but despite repeated queries by us he failed to point out any document tending to manifest that any amount towards part payment of the consideration was paid. In absence of any documentary proof, the mere assertion of the appellant cannot be taken as a gospel truth.
11. While scanning the record, we have come across a letter addressed by the Administrator, Municipal Committee Faisalabad to the Secretary (Acquisition), Member Board of Revenue (S&R)
Punjab Lahore in the year 1979, referred Supra, operative part whereof is very helpful to decide the lis in hand, therefore, the same is reproduced herein below: - "For reasons explained above, the sale deed dated 30 06-59 may be considered to be cancelled.
Arrangements may be made for the payment of expenditures incurred by the Corporation on the said area on various accounts from 1954-55 upto this date."
After going through the afore-quoted portion from the letter there leaves no ambiguity that neither anything was deposited by the appellant towards part payment of consideration amount nor the appellant was interested to continue with the said sale. In this scenario, plea raised by the learned Additional Advocate General carries due weightage that no step towards completion of sale was taken by the appellant, thus, it had no locus standi to file Writ Petition before this Court. Even otherwise, if it is admitted that there is a dispute regarding payment of partial amount of Rs.65,00,000/- by the appellant, the same could not be decided by this Court in exercise of jurisdiction vested under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, rather for the purpose the aggrieved party should approach the court of competent jurisdiction.
12. As far as case law cited by learned counsel for the appellant, is concerned, we are of the view that the same is not applicable to the facts and circumstances of the present case inasmuch as in the said cases the subject matter was the action by the Municipal Committee against the persons in whose favour no formal order regarding allotment or lease was passed, whereas in the instant matter the question is regarding withdrawal of sale in favour of the appellant due to non-payment of sale price.
13. For what has been discussed above, no exception can be taken to the conclusion arrived at by the learned Single Judge in Chambers. Consequently, instant appeal is dismissed with no order as to cost.