' MUHAMMAD SAJID MEHMOOD SETHI, J. This consolidated judgment shall dispose of instant writ petition along with following connected writ petition as common questions of law and facts are involved in these cases:--- W.P. No. 23792 of 2009. ldara-e-Kissan v. Chief Secretary, Govt. of Punjab, Lahore, etc.
2. Brief facts, as stated in the writ petition, are that the respondent No. 1 leased out land (plot) measuring 03-Kanals 16-Marlas & 159-square feet to the petitioner in Khasra No. 3229 min 3235 min and 3238 min at Main Ferozepur Road, in the Revenue Estate of lcchra, Lahore, for the purpose of installation of a fuel station. The vacant possession of plot was handed over to the him on 28.05.1995. Petitioner created a sub-lease of the plot in favour of _Shell Pakistan Ltd. on 28.06.1995, to set up a fuel station in accordance with the terms of lease of said plot. Shell Pakistan Ltd. obtained permissions from the concerned authorities, including NOCs from the then Deputy Commissioner, Lahore, the Chief Inspector of Explosives and High Level Design Committee. Lahore Municipal Corporation sanctioned building/site plan on 15.01.1997 The petrol pump became operational and sale of petrol and other allied products commenced in June 1996. In April 1997, construction of the building started on the site, as per approved building plan. However, without any prior notice to the petitioner, petrol pump was demolished by the demolition squad of Lahore Municipal Corporation on 23.06.1997. Petitioner filed W.P. No. 15290 of 1997 and during its pendency he came to know that respondent No. 1 had created a Show Cause Notice in its records, calling upon the petitioner to show cause why the lease deed dated 22.06.1995 might not be terminated.
The said notice was shown to have been issued on 19.06.1997 under Section 30(2) of the Colonization of Govt. Lands (Punjab) Act, 1912. The said notice was also challenged by the petitioner by filing W.P. No. 20248 of 1997. Both these writ petitions were accepted and the actions of the respondents were declared to be illegal, unwarranted and unconstitutional vide judgment dated 29.05.2006 passed by this Court. The respondents filed I.C.A. Nos. 213 of 2006 and 214 of 2006 whereby the said judgment passed by this Court was challenged. The Hon'ble Division Bench of this Court, vide order dated 15.11.2006, dismissed the said Infra Court Appeals. Respondents challenged the said orders by filing C.P.L.A. Nos. 394 & 395/L of 2007. The apex Court granted leave and these two petitions were converted into Civil Appeal Nos. 1080 & 1081 of 2007. The respondent/Government of the Punjab stated before the apex Court that it had settled the matter with the petitioner out of Court, and withdrew the said two Civil Appeals through miscellaneous application Nos. 1804 & 1805 of 2007, on 12.06.2007. The respondent offered the petitioner an alternate site measuring 06-Kanal (150' x 180') comprising Khasra No. 69 min situated at Walton Raod, in the Revenue Estate of Mauza Rakh Kot Lakhpat, Lahore. The said plot was again meant for setting up a fuel/ONG station. On 20.02.2008, a formal lease deed of the plot was signed between the petitioner and the Board of Revenue through District Officer Revenue, Lahore. On 01.03.2008, the said lease deed was registered with the office of Sub-Registrar, Model Town, Lahore, as document No. 2967, Book No. 1, Volume No. 2938. On 22.04.2008, mutation of the said plot was affected in the name of petitioner. The petitioner was given possession of the plot on paper on 07.03.2008 but physical possession was put off on one pretext or the other. Through the instant writ petition, the petitioner seeks issuance of a writ of mandamus against the respondents directing them to honour and fulfill their commitments and obligations, and to arrange for the delivery of possession of the leased plot, with the following prayer:--- "That in the light of the foregoing it is most respectfully prayed that the honourable Court may graciously direct the respondents to arrange for the delivery of vacant possession of the plot measuring 6 Kanals (150' x 180') comprising Khasra No. 69 min situate at Mauza Rakh Kot Lakhpat, Lahore for which a Lease Deed has already been executed between the petitioner and the respondent and duly registered the the Sub Registrar, Model Town, Lahore on01/03/2008, for setting up of a Petrol F'ump/CNG Station.
' The honourable Court may grant any other relief found due including the cost of these proceedings."
3. Learned counsel for the petitioner submits that the statement/commitment given by the respondents before the Honorable Supreme Court of Pakistan, is liable to be enforced and the conduct of the respondents in not arranging the physical delivery of the plot is clear breach and violation of the statement made before the apex Court: He further submits that the respondents being public functionaries under the law, are obliged to act equitably, fairly, justly, transparently, reasonably, without any taint of mala fide or discrimination and squarely within the parameters of law. He adds that the refusal of the respondents to hand over possession of the alternate plot, after having signed a lease deed, is an illegal act which ought to be corrected by issuance of the writ. In the end, learned counsel submits that petitioner, under Article 23 of the Constitution of the Islamic Republic of Pakistan, 1973 (hereinafter referred to as "Constitution"), is entitled to hold property and by signing the lease deed dated 20.02.2008, the petitioner has acquired a valid, lawful, vested and enforceable right in the property and non-delivery of the same militates against and is in breach and violation of the Articles 2-A, 4, 18 and 23 of the Constitution.
4. On the other hand, learned Assistant Advocate General along with learned Member (Colonies), Board of Revenue, Punjab, Lahore, submits that the necessary steps were taken for seeking permission of the Chief Minister to redress the grievance of the petitioner in terms of the undertaking furnished before this Court on 21.09.2015, but due to certain technical objections raised by the Law Department, the needful could not be done, as a result whereof, the grievance of the petitioner could not be redressed.
5. Arguments have been heard and record perused.
6. Perusal of record reveals that this Court accepted W.P. No. 15290 of 1997 and W.P. No. 20248 of 1997, filed by the petitioner, vide judgment dated 29.05.2006, the operative part of which reads as under:-- "I, therefore, direct that the petitioner will be deemed to be in the position as it was on 18.6.1997 when all NOCs etc. were in tact and the building plan valid. This Court had granted a stay order in all respects on 3.7.1997 which was confirmed on 14.7.1997. The lease will be deemed to be in tact for the remaining period from the date of this decision. I was minded to grant damages to the petitioner. I have not done that in view of the undertaking by the petitioner himself that he would forego costs etc if he were to be allowed to reconstruct the petrol pump."
7. The respondents preferred I.C.A. No. 213 of 2006 against the aforesaid order, which was also dismissed with the following observations:-- "8. After hearing the learned counsel for the parties we are inclined to uphold the preliminary objection raised by the learned counsel for respondent No.
1. The relevant law with regard to the demolition of petrol pump as conceded by the learned Additional Advocate-General was Local Government Ordinance, 1979 which provides for an appeal; likewise proceedings under the Colonization of Government Lands (Punjab) Act, 1912 are governed by Land Revenue Act, 1967 which too provides for one appeal, revision or review. If proceedings are initiated by a single Member of the Board of Revenue, the same can be agitated before the Full Board under Section 7 or 8 of Board of Revenue Act, 1957 as revision or review as the case may be.
9. In view of the aforesaid we are of the opinion that both the Indra-Court Appeals are hit by the proviso to Section 3(2) of the Law Reforms Ordinance, 1972 and are thus not maintainable. Both these appeals are accordingly dismissed in limine."
8. The respondents preferred C.P.L.A. Nos. 394 & 395/L of 2007, before the Honorable Supreme Court of Pakistan, which were also dismissed as withdrawn with following observation:-- "Learned Advocate General Punjab states that an out of Court settlement has been arrived at between the parties and hence the Government does not want to pursue the appeals, which are accordingly withdrawn.
2. On acceptance of Civil Misc. Applications # 1804 & 1805 of 2007, main Civil Appeals # 1080 & 1081 of 2007 respectively are hereby dismissed as withdrawn."
9. Consequently, the respondent agreed to demise the plot measuring 06-Kanals situated in Mauza Rakh Kot Lakhpat, Tehsil Lahore Gantt, District Lahore, to the petitioner, for the purpose of installation of petrol pump for a period of 33-Years subject to the payment of Rs. 36,00,000/- per annum as assessed by DRAC and approved by the Government of the Punjab, Colonies Department vide letter No. 5004-2007-CM/2698-CSI, dated 19.11.2007. Lease deed was executed, but possession could not be given on the ground that the Livestock Department had already entered into 20-Years joint venture/agreement with ldara-e-Kissan w,e,f, 03.11.1996. The said deeds rehabilitated the Lahore Milk Plant, which is presently operating at the site.
10. During the course of proceedings, the Government, in order to redress the grievance of the petitioner, made numerous offers to provide the petitioner with an alternate land situated at Multan Road near Thokar Niaz Baig close to the Motorway and at Bund Road, Lahore, but the site shown by the respondents was nonexistent and the possession of the above properties was with some third party. When the grievance of the petitioner was not redressed, the respondent No. 1 was directed to appear in person before this Court to explain the reasons for non compliance of the orders passed by this Court from time to time. He appeared and furnished the following undertaking on 21.09.2015 before this Court:-- "The Member (Colonies), Board of Revdnue, Punjab, present before the Court, undertakes that he will take all necessary steps for seeking permission of the Chief Minister to redress the grievance of petitioner within six weeks."
11. It appears that the respondents are deliberately delaying the matter on one pretext or the other.
They are reluctant to implement the orders passed by the Courts in favour or the petitioner and are not ready to hand over possession in terms of the lease agreement executed in favour of the petitioner.
12. The petitioner, under Article 23 of the Constitution, is entitled to hold property. By signing the lease deed dated 20.02.2008, petitioner has acquired a valid, lawful, vested and enforceable right in the property. The non delivery of possession is in breach and violation of the said Article. No third party right can be created over the leased premises at the expense of the petitioner. Lease deed has created valuable rights in favour of the petitioner, which can only be cancelled in terms of the document itself not otherwise. The petitioner, under Article 18 of the Constitution, has right to practice any lawful trade or business. The unfair and unjust action of the respondents is against the provisions of the Articles 2- A, 4, 9, 14, 23, 24 & 25 of the Constitution. The respondents being public functionaries, under Section 24-A of the General Clauses Act, 1897, are obliged to act equitably, fairly, justly, transparently, reasonably and without any taint of ma/a fide. The inaction and refusal to hand over possession of alternate plot, on the part of respondents, after having signed lease deed, are illegal and without lawful authority.
13. The impugned inaction not only constitutes violation of fundamental right of the petitioner guaranteed under Articles 23 and 24 of the Constitution, but also constitutes naked contempt of the orders/undertaking furnished by the respondents before this Court from time to time. An exception to this fundamental right is acquisition of land by the Government for public purpose under the provisions of Land Acquisition Act, 1894 (hereinafter referred to as the "Act"). Provisions of the said Act provide that the acquiring authority could enter into the land acquired only after its,.acquisition had been notified and published in official gazette. Non-compliance of the mandatory provisions of the Sections 4, 5 & 9 of the Act would vitiate the whole proceedings of land acquisition. No such process has been initiated in the case in hand.
14. Provisions of the Articles 23 & 24 of the Constitution enshrine a fundamental right entitling the person, having lawful right over the property, to hold and enjoy his property, as long as he does not infringe any law regarding the same and Article 4 of the Constitution categorically mandates that no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law. As the petitioner is deprived of such right otherwise than in due course of law, he has a right to claim his possession from the respondents by invoking the Constitutional jurisdiction of this Court under Article 199 of the Constitution. Reference can be made to Province of Punjab through Secretary Irrigation, Government of the Punjab, Lahore and 2 others v.
Abdur Rehman Shaukat (1999 SCM R 2610), Javed Hayat and .another v. The State (PLD 2006 Lahore 167) and Malik Salah-ud-Din and 6 others v. Collector, Land Acquisition, Peshawar and 3 others (1999 CLC 776).
15. Resultant, this petition is allowed and respondents are directed to ensure the vacant possession of the plot in question to the petitioner within a period of 02-months from the date of receipt of certified copy of this judgment, after settling the matter with ldara-e-Kissan as pressed by them in the connected petition i.e. W.P. No. 23792 of 2009, or alternately ensure the vacant possession of a plot equivalent to the market value of the plot in question, to be determined by comparing the D.C. rates, to the satisfaction of the petitioner. The petitioner shall also be at liberty to file a suit for damages before the Court of competent jurisdiction against the respondents for breach of the lease agreement entered between the parties, if so advised.