' CH. MUHAMMAD IQBAL, J.---Through this petition the petitioner has challenged the order dated 14.02.2009 passed by the respondent. The prayer of the petitioner is as under:- "In the light of the above submissions it is humbly prayed that the writ petition be allowed by declaring the order dated 14.09.2009 of Chief Settlement Commissioner/respondent No.1 has been passed without lawful authority and same is liable to be set-aside."
2. Brief facts of the case are that land measuring 5-kanals 6-marlas comprising khasra No. 1030 (4-kanals 16 marlas) and 1031 (10 marlas), situated in revenue estate Mandiala Warraich, Gujranwala, was in the ownership of Provincial Government (Sabiqa Matrooka). The petitioner filed an application before the District Officer (Revenue) Gujranwala, for the purchase of above mentioned land. Further submits that on 17.11.2007 a letter of confirmation/ sanction was issued by the Secretary to Government of the Punjab, Colony Department, in favour of the petitioner, in compliance of summary approved by the Chief Minister through the said letter the land in question was sold to the petitioner. After payment of full demanded amount the petitioner became full owner of the land in question but due to some official proceedings the sale deed could not be executed, as such, the order dated14.09.2009 is not sustainable in the eyes of law. In this regard the learned counsel for the petitioner placed reliance on the case reported as Nabi Bakhsh v. Ali Buksh (PLD 1978 Revenue 15), Din Muhammad v. MBR etc. 1992 ALD 582(1), Islam Din v. Muhammad DinPLD ,1964 Supreme Court 842 and 1985 M LD 1574.
3. Learned counsel appearing on behalf of respondent No.4 submits that respondent No.4 filed an application in the year 2004 in the office of Chief Settlement Commissioner/Member Board of Revenue Punjab, Lahore for the purchase of above mentioned land. Respondent No.4 in this respect filed a Writ Petition No. 2266 of 2008 titled as Rao Ihsan Elahi Khan v. Member Board 'of Revenue (Colonies) Punjab etc. And prayed as under:- "In view of the submissions made above, it is most respectfully and humbly prayed that letter dated 17.11.2007 issued by the Secretary to Government of Punjab, Colonies Department to the respondent No.3 may kindly be set aside and a direction may kindly be issued to the respondent No.1 to decide the application of the writ petition on merit.
4. On 16.06.2009 the said writ petition was disposed of by this Court,directing the Chief Settlement Commissioner to decide the grievance of respondent No.4 in accordance with law. In the light of said direction on 14.09.2009, the Chief Settlement Commissioner after hearing the parties passed the impugned order, which is in accordance with law.
5. The learned AAG along with learned counsel for respondent No.1 submits that property in question is an evacuee ("Sabeqa Matrooka"). It should be disposed of under the Scheme for the Management and Disposal of Available Urban Properties 1977.
6. The learned Law Officer has further submits that the Chief Minister has no power to transfer the land in question to the petitioner. He further submits that the impugned order is not a final order, as such, the writ petition is pre-mature and is not maintainable.
7. After hearing the learned counsel for the parties and perusing the record, following questions are arise in this writ petition, which were necessary for the decision :-
(i) Whether the Chief Minister has power to dispose of the Evacuee/ State Property.
(ii) Whether Colonies Department has authority to move any summary or transfer the land which is evacuee property.
8. To answer the first question, firstlyI examined the file and it is astonishing position that on telephonic order which was allegedly passed by the Chief Minister to the Secretary (Colonies), who prepared a summary of land in question. The property is evacuee/state land, it can be disposed of under Scheme for the Management and Disposal of Available Urban Properties 1977. Chief Minister has no power to alienate or transfer/allot the evacuee/state land which is ultimately is a property of public at large. The Honourable Supreme Court of Pakistan held vide order dated 20.11.2010 passed in Human Right's cases Nos. 7581-P and 9059-P of 2009 as under:-- "The learned Advocate GeneralPunjab 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."
"The learned Advocate General, Punjab further stated that as far as the issue regarding unfettered powers 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".
9. In another case i.e. Civil PetitionNo. 222-L of 2010 titled as " Hafeez Akhtar Randhawa v. Member Colonies Board of Revenue" the Hon'ble Supreme Court held as under:-- " We may also add that in re: Suo Motu Case No.10 of 2009 (2010 SCMR 885) and in a number of subsequent cases that Court has already held that lands, mines, minerals, gas etc. Are assets which belong ultimately to the people of Pakistan and the same cannot be doled out at the whims and fancies of state functionaries. In another case titled Arshad Waheed v. Province of Punjab (PLD 2010 Lahore 510) the Lahore High Court has also reiterated the same view."
10. In another case reported as Province of Punjab through Secretary Revenue and others v. District Bar Association Khanewal and others (2014 SCMR 1166) the Honourable Supreme Court held as under:-- "Looking at the powers of the Chief Minister for allotment of public, here a reference to the case of Iqbal Hussain v. Province of Sindh through Secretary, Housing Town Planning Karachi and others (2008 SCM R 105) will be useful wherein this Court has observes asunder:-- ' 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 in neither hinging on the subordinate forums nor valid in the eye of law. Reference in this behalf may be made to decision of this Court in (i) Abdul Hag hzdhar v. Province Sindh (2000 SCM R 907) and (ii) Taj Muhammad v.
Town Committee (1994 CLC 2214).
11. In another case reported as "AlShafeeq Housing Society Haydrabad v. Pakistan Medical Association Karachi and 5 others, (PLD 1992 Supreme Court 113) it was held as under:- "The question here is not only of the restoration of the respondent's allotment but also of the legality and validity of the appellant's allotment. As already observed Government or for that matter the Chief Minister had no power to either annul the respondent's allotment order to make the allotment to the appellant as done in this case. This is besides the points that the appellant, could not at all had been allotted an amenity plot for the purpose, for which it obtained the allotment from the Chief Minister".
12. In another case reported as "Sindh People 's Welfare Trust (Re gd) through Secretary v.
Government of Sindh through Secretary Housing Town Planning and Local Government and 2 others (2005 CLC 713)
"At the same time, however we feel constrained to deprecate the conduct of public representatives in using public property for political ends and also disapprove the tendency on the part of public officials in ignoring the requirements of law to please their superiors. When the Chief Minister desired summary to be prepared it was the duty of the concerned officers of the Sindh Government to bring to his notice that the allotment could only be effected by the governing body of the K.D.A after following certain procedures. Again when the Cabinet decision to cancel-irregular allotments wascommunicated to the concerned officer in the K.D.A, K.D.A ought to have realized that such cancellation could not be effected through cyclostyled orders but in each case the irregularity had to be identified and the affected persons given a chance to prove the contrary."
"In view of our above conclusions, the appeals filed by government of Punjab as well as by the private persons are accepted to the extent that the lands which were subject matter in the above cases were not available for transfer where as agricultural urban land or as agricultural land since all these lands were within the Municipal limits of Lahore and were declared as building site in view of the notification dated 16.05.1973 issued by the Chief SettlementCommissioner under the provisions of Displaced Persons Land Settlement Act, 1958.
It is however left open that if any of the appellants in Civil Appeals Nos. 1049 to 1054 of 1995 wasentitled under the Scheme framed after repeal of evacuee laws the same may be agitated if so available under the law before the authorities concerned. There will be no order as to coasts."
13. In view of the above, the Chief Minister has no power to sale or transfer/ allot the state land to any body else.
14. As far as the second question, is concerned, the land in question is an evacuee property and under the Scheme (Ibid) only Member Residual Property is competent:-- "11. Sale by auction---A house, shop or a building site having permanent construction for the transfer of which no application is received and every property that is cancelled from the name of a defaulter and a vacant building site shall be deposed of by unrestricted public auction.
(Amendments on 28th July 1984).
After para No.11, the following shall be added:- "Provided that a present occupant of such property shall have the first right of purchase" subject to the condition that in the case of vacant building sites such right shall be exercise able only, if a permanent construction has been raised. Provided further that in such cases, the total area to be offered for purchase shall not exceed three times the plinth area or 2-kanals, whatever is less."
12. Disposal of houses, shops or building sites by negotiation.---If a house, a shop or a building site having been put to auction twice fetches no bid or fetches a bid short of the reserve price, it shall be disposed of by negotiation by inviting sealed tenders which shall be opened by the Deputy Administrator (Residual Properties) of the area concerned in the presence of the tenders. If the highest offer made for such a house, a shop or a building site is equal to or exceeds 75% of its reserve price, it may be accepted by the Deputy Administrator (Residual Properties) and where the highest offer made is below 75% of the reserve price but not less than 50%, it may be accepted by the Administrator (Residual Properties), of the area or where the highest offer made is below 50% it may be accepted by the Member, Board of Revenue (Residual Properties).
30. Powers to transfer properties in public interest----The Member, Board of Revenue (Residual Properties), may transfer, in public interest any available property in such manner and on such price as he may deem proper.
(Amended)
' GAZETTE OF PUNJAB EXTRAORDINARY, 18TH OCTOBER, 1977)
' The headline of para 30 the words "in public interest" shall be deleted.
(2) Para. 30 shall be numbered as sub-para (I) of para, 30 and thereafter the following sub-para shall be added:- "Where a property is partly available property and partly owned by any person, the Member of Revenue (Residual Properties) may transfer the available property on application to such person on payment of transfer price."
15. That the evacuee land should be disposed of under the above mentioned scheme. If law requires a thing to be done in a particular manner it must be done in that manner only and not otherwise. Reference in this behalf may be made to 1997 SCMR 1935 (Ramzan's Case), to 1988 SCMR 2596 Member Board of Revenue Punjab Lahore v. Rafaqat Ali.
16. In view of above, as the property in question is an evacuee (Sabiqa Matrooka), therefore, only Member Residual Properties is competent under the Scheme (Ibid) to dispose of evacuee land (Sabiqa Matrooka). The Chief Minister is not authorized to allot/sale/transfer the evacuee state land, which is property of public at large. The confirmation/sanction letter dated 17.11.2007 issued by the Secretary to Govt. Of the Punjab, Colonies Department, under the approval/order of Chief Minister, is illegal, without lawful authority, as such, it is hereby, cancelled.
17. The upshot of the above discussion is that the writ petition has no merit and the same is dismissed.