Ch. Muhammad Ibrahim Zia, J. - The captioned appeal by leave of the Court has arisen out of the judgment of the High Court dated 03.04. 2014, through which the writ petition filed by the appellants, herein has been dismissed.
2. The brief facts of the case are that the appellants, herein, filed a writ petition ,before the High Court alleging therein that they are owners of the land comprising survey No. 419 measuring 6 kanal 2 marla situate in village Chatter Domail, Tehsil & District Muzaffarabacl. The land near about 423 kanal was acquired for public purpose vide award No. 7/79 dated 15.04.1979 including the land bearing khasra No. 419. After the award, some other khasra numbers including the land owned by the appellants and Fazal-ur-Rehman and others were left unutilized by the Department / Government. It was further alleged that Fazal-ur-Rehrnan and others applied for de-notifying their land. The appellants also applied for the same purpose through application which was duly processed by different officers of PWD under the direction of the Prime Minister. It was contended by the department that 2 kanal of the land out of survey No. 419 has been transferred in favour of Dar-ul- Aloom Islamia and the remaining piece of the land i.e., 3 kanal 7 marla was recommended to be de-awarded. The file was kept in abeyance by the Public Works Department. Afterwards, vide notification dated 09.05.2003 the land measuring 15 kenel 1 marla entered in different khasra numbers was de-awarded and restored in favour of the respective landowners but the land in dispute was not included in that notification. It was further alleged that the appellants approached the concerned authorities for redressal of their grievance whereupon, it transpired that the respondents instead of de-notifying the disputed land have proposed the same to be transferred in favour of Dar-ul-Uloorn Islamia through proposal dated 31.07.2003. The appellants prayed for quashing the proposal dated 31.07.2003. They also sought a direction to the respondents for de-notifying the disputed land in their favour. The learned High Court after necessary proceedings dismissed the writ petition through impugned judgment dated 03.04.2014.
3. Sardar Karam Dad Khan, Advocate, the learned counsel for the appellants after narration of necessary facts submitted that the judgment of the learned High Court is totally result of misconception of the facts and non- appreciation of the material. The appellants are admittedly land-owners whose land was acquired whereas the respondents vide order dated 9.5.2003 de-award the acquired land in favour of other land-owners. Thus, according to the constitutional provisions of equality before law, the appellants deserve the same treatment.
This aspect has been totally ignored by the learned High Court. Equal treatment of the state subjects is constitutionally guaranteed fundamental rights and aggrieved persons have constitutional right to approach the Courts for enforcement of their rights. He further submitted that according to respondents' own official record the acquired land of the appellants is no more required for public purpose. The same has been proposed to be transferred to respondent No.7, in violation of law. According to law enforced, neither any such transaction is permissible nor the respondents have got any legal authority to dispose of the public property in such manner.
He submitted that this Court has already enunciated principle of law that unless according to constitutional provisions laws is made, the Government has no authority to make the transfer of public properties. Thus, the impugned judgment is not maintainable. He placed reliance on the cases reported as Ghulam Rasool and others vs. Said Ahmed and others [2012 SCR 367]. Imran Ali vs. Public Service Commission & others [2013 SCR 795] and Rehmatullah Khan & others vs. Azad Govt. & others [2014 SCR 1385]
4. Conversely Mr. Muhammad Yaqoob Khan Mughal, Advocate, the learned counsel for respondent No. 7 strongly opposed the appeal and submitted that the appellants have no locus standi, whereas, respondent No. 7 is an institution of public interest. There is fully established Dar-ul-Aloorn and for residential and other requirements the proposed land is required. The Government has already transferred the land measuring 6 kanal to the respondents. After a period of more than 24 years the writ petition is not maintainable. The appellants have been paid due compensation on acquisition of their land, therefore, they have no right to claim restitution of the acquired land. Therefore, the impugned judgment of the High Court is quite legal one, calling for no interference.
5. We have heard the arguments of the learned counsel for the parties and also examined the record made available. The examination of the impugned judgment reveals that regrettably, the writ petition has been disposed of after almost 11 years period through a very telegraphic judgment. It appears that the main reasons prevailed with the learned single Judge of the High Court is laches and that the land is proposed to be transferred to respondent No. 7. So far as the first ground of laches is concerned, in our opinion, in view of peculiar facts of this case the conclusion drawn by the High Court is not correct. The documents brought on the record by the parties clearly speak that the appellants-land owners in this regard applied for de-awarding the land in the year 1998 and their basic claim was based upon the notification dated 04.09.1991 through which 17 kanal acquired land was de-awarded in' favour of the land owners. Not only this, the appellants also furnished copy of notification dated 09.05.2003 (Annexure "G") through which 15 kanal 1 marla acquired land was released and de-awarded in favour of land-owners. It is apparent from the record that the matter of de-awarding and releasing the land is under consideration of the Government since long and consequently a considerable acquired land has been de-awarded and released in favour of the land owners. One of those notifications is 09.05.2003. Thus, when the appellants' application is awaiting disposal before the Government since 1998 and the Government has de-awarded the land acquired through the same award in favour of the land-owners of the same village through notification dated 09.05.2003, in this context the writ petition cannot be declared incompetent by attraction of principle of laches. Although, in our considered view, there is no specific provision of de-awarding and releasing the acquired land in such manner, however, the appellants approached the Court for enforcement of their fundamental right No. 15 i.e. equality of state subjects before law, being state subjects.
As the official respondents themselves released the un- utilized acquired land in favour of other land-owners of the same village which was subject of same award, therefore, discriminatory treatment by official respondents is not warranted under law. To this extent, the appellants' writ petition merits acceptance and in the matter of releasing and de-awarding the land they deserve equal treatment as the official respondents have done through notification dated 09.05.2003.
6. Now, we take up the next point on which the writ petition has been dismissed through the impugned judgment that the proposal for transfer of the disputed land in favour of respondent No. 7 has been processed. We have no concern with the nature and status of respondent No. 7, but on this identical provision of granting or transferring the Government land to others the matters came before this Court previously in a number of the cases. The learned counsel for the appellants has rightly placed reliance on the cases reported as Ghulam Rasool and others vs. Said Ahmed and others [2012 SCR 367], Imran AIi vs. Public Service Commission & others [2013 SCR 795] and Rehmatullah Khan & others vs. Azad Govt. & others [2014 SCR 1385]. In Ghulam Rasool's case (supra), this Court has held as under: "9. The basic constitutional provision dealing with the transfer of land by the Government, is section 52(A) of the Azad Jammu and Kashmir Interim Constitution Act, 1974. Subsection of this section provides that "transfer of land by the Government or the Council shall be regulated by law". This is mandatory under the provisions of the Constitution that for transfer of land, there must be some procedural law. It is not a sweet discretion of the Government or other public authorities to distribute this State property as charity. Under the provisions of Land Acquisition Act, the Azad Jammu and Kashmir Land Acquisition Rules, 1994 have been framed but in these rules, the Government is only empowered to transfer the acquired land to such a legal person for whom the Government is empowered to acquire the land. Relevant rules reads as following:-- 14.Where any land has been acquired for department of the Government or a local authority for a public purpose and the said land or a portion thereof is no more' required for that purpose, it may be used for any other public purpose or for a company or industry for which land can be acquired under the Act.
15. (1) Where any land has been acquired for a company, it shall not be sold or otherwise disposed of except with the prior and express approval of Government.
(2) If the company for which any land has been acquired makes an application to Government under sub rule
(1) for permission to sell or otherwise disposed of the acquired land or any part thereof, and in case the required permission is declined, then the following procedure shall be followed: ---
(i) In a case where compensation to the original owners or their heirs had not been paid, the land shall be resumed and restored to the original owner or their heirs.
(ii) In a case where compensation had been paid fully or partly, the land shall be resumed and offered for sale to the original landowners or their heirs in lieu of reimbursement of the amount of compensation with interest at the Government rate prevalent during the period the land remained out of their possession.
(iii) If the original landowners or their heirs have been provided alternate land in lieu of their acquired land or if the original landowners or their heirs are not prepared to accept restoration of land under clause. (ii) the land shall be resumed in lieu of reimbursement of the amount of compensation with interest at the Government rate prevalent during the period the land remained in possession of the company. The land shall just be utilized or disposed of by Board of Revenue in accordance with the policy of the Government regarding disposal of lands.
(iv) In a case where any improvement has been made or any structure has been raised by the company on the land proposed to be disposed of, the permission to sell land may be granted by Government subject to the condition that the difference in. the market value of the land at the time of the sale and the amount of the acquisition shall be payable to the original landowners or their heirs.
15. Where the land is used for a purpose other than the one for which it was got acquired, by the acquiring company the same shall be resumed immediately by Government without any compensation and the acquiring company shall also be liable to be a penalty which may extend to Rs.50,000,00/- depending upon the nature of each case.'
10. The reading of herein above, reproduced rules reveals that once the land is acquired by the Government for public purpose or for company or industry it cannot be utilized against the public interest or for the individual's benefit. The first condition is that the acquired land can only be used for the purpose it is acquired, the land can be acquired under the Land Acquisition Act, whereas there is no provision empowering the Government to acquire land for any individual's personal interest or benefit. The other condition is that even if the land is acquired for a company, the company cannot sell the same without express approval of the Government. This condition also is laid down with spirit that public interest is supreme. The Government will have to watch the interest of public. The third condition is that if at all, the acquired property is not required for the public purpose or for the purpose for which it is acquired, the dame shall be resumed and restored to the original owners or their heirs from whom it was acquired and if there is no such eventuality, the land shall be utilized or disposed of by the Board of Revenue, in accordance with policy of Government regarding disposal of the land. Thus, the scheme and spirit of these rules ultimately also is in consonance of the constitutional provision as expressed under the provision of section 52(A) of the Interim Constitution Act, 1974 which means that without any express and specific legislation no one is empowered to transfer the Government land to any person in an arbitrary manner.
11. Even otherwise, the question in the instant case whether the Government is empowered to transfer or exchange the "Shamlat" or "Khalsa" land with any private land. Neither any such provision exist in the statutes, dealing with "Khalsa" land or the "Shamlat" land nor any other provision of any enforced law empowers the Government to execute such like transaction of exchange in the interest of private person. In the "Shamlat" land of village the owners of the State have got vested legal rights and interest, hence the Government even otherwise is not empowered to transfer such land through notification to any individual person.
12. The appellants failed to refer to any other provision of law empowering the Government to transfer the land to private persons. It is settled principle of law that things should be done according to prescribed mode and not otherwise. This principle of law has been followed by this Court in numerous pronouncements. Reference may be made to case reported as 2004 SCR 23 and 378, wherein it has been held that if a thing is to be done in a particular way, it should be done in that way and manner as prescribed or should not be done at all. Therefore, we are constrained to hold that the Government, under the law enforced in the Azad Jammu and Kashmir, without making law according to spirit of section 52(A) of the Azad Jammu and Kashmir Interim Constitution Act, 1974, cannot transfer the State land to any person or exchange the same.
13. So far the powers bestowed upon the Government under the Land Acquisition Rules, are concerned, these are conditional only to the extent of acquired land and that too can only be transferred to such a person for whom under law, the Government can acquire the land. Thus, the whole transaction in this case is without lawful authority. It is now settled principle of law that any act without lawful authority does not create any interest or legal rights in favour of the beneficiaries."
This principle has also been followed in the latest case reported as Rehmatullah Khan & others vs. Azad Govt. & others [2014 SCR 1385]. Thus, without dilating upon other details the principle of law consistently laid down by this Court in this regard is fully applicable to the case in hand. The transfer of Government land in such manner is not warranted under law, therefore, dismissal of writ petition on this ground is also against the law.
7. We have no hesitation in observing here that it is in our judicial notice that in Muzaffarabad all the public institutions are facing hardships of proper public office accommodation due to scarcity of land but it is very funny that despite this crucial situation some officials are reporting that the acquired land is not required for any public purpose. This aspect requires special attention of the concerned and Executive Supervisory Authority to seriously take up this matter in the public interest. If despite requirement of land for public purpose, the reports are submitted by officials on the basis of undue influence then necessary actions may be taken against them.
8. Therefore, subject to observations made hereinabove, if the land is not required for public purpose then the appellants being the land-owners of the acquired property, under the constitutional right No.15, are entitled for equal treatment as the Government has dealt with other land-owners while de-awarding and releasing the land in their favour. The appellants should also be dealt in the same manner and discriminatory treatment is condemned.
With these observations this appeal stands disposed of.