' ZAFAR AHMED RAJPUT, J.---This petition has been filed with the following prayers:-- a. That petitioner and others being already in possession of the said survey numbers 361 - 362, Sector A-2; main super highway, Deh Gujro, Tapo Songal, District Malir, Karachi are entitled to have the lease either for 99 years or 30 years in respect of the respective lands in their possession/ occupation/ use and the respondents Nos. 2 to 4 to consider the request of the petitioner and to lease the said survey numbers 361 - 362, Sector A-2, main super highway, Deh Gujro, Tapo Songal, District Malir, Karachi in favour of the petitioners and others as per their respective possession over the piece of land in respect of said survey numbers 361 - 362, Sector A-2, main super highway, Deh Gujro, Tapo Songal, District Malir, Karachi on the rates as offered by the petitioner to which otherwise being much - much higher with the rate as proposed/ fixed by the competent authority of the respondents Nos. 2 to 4 and the petitioner and others being in possession of the respective portion of the said survey numbers 361 - 362, Sector A-2, main super highway, Deh Gujro, Tapo Songal, District Malir, Karachi are within their rights and the respondents Nos. 2 to 4 ought to have consider to the request of the petitioner and others in possession of the respective portions of the said survey numbers 361 - 362, Sector A-2, main super highway, Deh Gujro, Tapo Songal, District Malir, Karachi. b. To grant ad-interim relief pending disposal of this petition whereby restraining/ refraining to the respondents Nos. 2 to 10 from initiating any sort of illegal or forcible action to which amounts to making an attempt to somehow or the other to disturb the peaceful possession of the petitioner and others in respect of said sun numbers 361 - 362, Sector A-2, main super highway, Deh Gujro, Tapo Songal, District Malir, Karachi.
2. Briefly stated facts of the case are that the petitioners are the occupants of plots/land, situated in Survey Nos. 361 and 362, Sector A2, Scheme-33, Super Highway, Sohrab Goth, Karachi. They had purchased the plots in their possession from M/s. Seven Star Housing Society in the year 1979, but later on it came to their knowledge that the subject land is owned by the Evacuee Trust Property Board (ETPB). It is further averred that the Administrator ETPB (respondent. No,3) got an advertisement published for auction of lease hold rights for 30 years in respect of subject land in daily "Jurat", Karachi and daily "Nawa-eWaqt", Karachi dated 11.03.2012, however, since no offer was received by the respondent No,3, the matter remained pending. It is the case of the petitioners that being in possession of the subject land, they requested to the Chairman, ETBP (respondent No,2) for its leasing out to them at the rate of Rs,12,50,000/- for 99 years lease or at the rate of Rs,600,000/- per acre for 30 years lease, yet the officials of ETPB are not considering their request, who under Sub-Clause (ii) of Clause 8 of the Scheme for the Management and Disposal of Urban Evacuee Trust Properties, 1977 ( "the Scheme of 1977" ) are competent to accord approval to the sale of the urban evacuee trust property.
3. We heard learned counsel for the petitioners and perused the material available on record.
4. Heard the learned counsel for the petitioners and perused the material available on record.
5. Learned counsel for the petitioners reiterating the facts of the case has contended that as the petitioners are old occupants of the plots/land, they have preferential rights over the land in their possession and since request made by the petitioners to the officials of ETPB for leasing out the subject land in view of Scheme of 1977 was not entertained by them, they have been compelled to maintain instant petition to safeguard their proprietary rights in respect of immovable property in their possession.
6. In order to appreciate the contentions of learned counsel for the petitioners, we deem it appropriate to reproduce the relevant clauses of the Scheme of 1977, as under:-
2. Definition.
(h) 'Uneconomic Property" means an evacuee trust property A yielding nominal income which is less than 5% of the value of the property, or no income, or the retention of which en Trust Pool is unprofitable due to its difficult to manage except such an evacuee trust properly which carries commercial potential because of its location and suitability for development to raise the Board's income.
8. Sale of Evacuee Trust Properties.
(1) ------------------------------------------------------------------------- ' The Board or its delegate may accord approval to the sale of urban evacuee trust property i.e, house, shop, plot, or land, which is uneconomic or otherwise difficult to manage, through open public or by calling tenders subsequent to wide publicity through mass media or in such cases where litigation has prolonged exceeding five years, through negotiation, if such sale appears to be the best course, as an act of good management, under the circumstances. The reserve price of the land shall be fixed at average of the prevailing market rate and the price fixed by the Deputy Commissioner or Collector of the District for the purpose of stamp duty; ' Provided that if no bid is received in the public auction or no tender is given or the response is not worth consideration or is below the reserve bid, the Board or its delegatee may allow sale through negotiation at the rate not less than reserve bid fixed in each such case; ' Provided further that in case of three auctions having been held and the rate of bid being found less than the reserve bid, the Chairman may revise the reserve bid which may not be less than the highest bid, received during previous auction.
7. It can be observed that selling out the urban evacuee trust property i.e, house, shop, plot or land under the said Scheme of 1977 may be a policy matter but before doing so the ETPB must come to the conclusion that such urban trust property is "uneconomic" or otherwise "difficult to manage". In the instant case the petitioners have failed to bring on record any decision of ETPB holding the plots/land in their possession as "uneconomic" or otherwise "difficult to manage". Besides, it is an admitted position that the petitioners are not the tenants or lessees but the illegal occupants of the plots/land owned by the ETPB, thus they are not entitled to any special privilege or preferential treatment.
8. We are also of the view that the right in public/State property originally belongs to the public/State. The State being a virtual entity exercises its authority through the public functionaries; therefore, whenever a right belonging to the public/State is alienated through sale, lease, license etc., the public functionaries are under obligation to protect and preserve the transparency and ensure the maximum gain for the public exchequer, essentially by extending equal opportunity to all potential competitors, who intend to acquire such property through purchase, lease, license etc. There can be no other view to the proposition that the public functionaries, deriving authority from or under law, are obligated to act justly, fairy equitably, reasonably, without any element of discrimination and squarely within the parameters of law.
9. In view of what has been discussed above, we do not find any merit in this petition; therefore, the same is dismissed in limine, along with listed application.
10. By our short Order dated 07.10.2015 the dismissed and above are the reasons for our Order instant petition was dismissed and above are the reasons for our Order.