MAQBOOL BAQAR, J.---The petitioner, through the above petition, has sought leave to appeal against the judgment of a learned Single Judge of the Lahore High Court, whereby whilst allowing the respondent No,1's petition, the learned Judge ordered implementation of the order dated 07.12.1991, passed by Additional Secretary, Government of Punjab, Housing and Physical Environmental Planning Department, by allotting to Muhammad Ramzan, the respondent No,1, plot bearing number 75-B/F, Farid Town, Sahiwal (the subject land/plot), at the market price that was prevailing at the time of the said order of the Additional Secretary.
2, The brief facts of the case are that according to Muhammad Ramzan, he applied for allotment of the aforesaid plot on 14.1.1982, claiming that he was a homeless and a landless person, which application, after pendency of about three years, was on 02.2.1985, dismissed by Deputy Commissioner, Sahiwal, on the ground that the said plot has been allotted to Faizullab, the respondent No,2. Faizullah, who was a Government servant employed with the Housing, Physical and Environmental Planning Department, was allotted by the District Housing Committee a 'C' class plot bearing No,21-V measuring 6 Marlas in a Township, developed by the said department, containing various categories of plots for allotment to general public. He later exchanged this plot with plot No, 75-A/F, measuring 6.61 marlas in the said town. The petitioner launched another residential scheme known as Low Income Housing Scheme ADS-II, Sahiwal. A trapezoidal piece of land, being the subject land/plot, contiguous to plot No,75-A/F was lying vacant in the said housing scheme. Faizullah being an employee of the concerned department managed to get the said piece of land/plot merged into his plot, on the pretext of `compounding deficiencies' and thus the size of Faizullah's plot was enlarged from 6.61 Marlas to 16.12 Marlas.
3. Admittedly Muhammad Ramzan had applied for allotment of the subject land/plot before the same was merged with Faizullah's plot No,75-A/F. The order dated 06.1.2003 of this Court in C.P.L.A.
No,81-L of 2002, which order shall be briefly discussed in the later part of this judgment, reveals that Muhammad Ramzan, through his application for allotment of the subject land/plot had cautioned the petitioner No,2 that Faizullah is attempting to usurp the subject land/plot through its merger with his plot No,75-A/F. Muhammad Ramzan's above request for allotment was, as noted earlier, declined through order dated 02.2.1985, however, while doing so the Deputy Commissioner/ Chairman District Allotment Committee ordered an inquiry regarding the aforesaid merger, through Magistrate 1st Class Sahiwal. The Magistrate in his report concluded that Faizullah, being an employee of the Housing Department, in connivance with the concerned officers, has in fact got the subject land/plot merged into his plot illegally, enlarging his plot to a size in excess of his entitlement. The report also pointed out that in securing the said merger/allotment in favour of Faizullah the concerned officers have also concealed the pendency of Muhammad Ramzan's application for allotment of the subject land. Consequently through order dated 07.4.1990, the Deputy Commissioner, Sahiwal cancelled the merger/allotment of the subject land/plot in favour of Faizullah. Against the said order Faizullah preferred an appeal before the Additional Commissioner (Revenue), Multan Division. Muhammad Ramzan, also filed an appeal for allotment of the subject land/plot in his favour. Through order dated 06.2.1991, the Additional Commissioner, whilst rejecting the Faizullah's appeal, accepted the appeal filed by Muhammad Ramzan. He ordered that in the event of cancellation of the subject land, Muhammad Ramzan shall be given preference at the time of allotment.
4. Petition filed by Faizullah for revision of the aforesaid order was dismissed by Additional Secretary (Dev), HPOEP department on 07.12.1991, with a direction for allotment of the subject land/plot in favour of Mohammad Ramzan.
5. Faizullah's, suit challenging the aforesaid orders was dismissed, his appeal, as well as revision met the same fate and so also his petition was dismissed by this Court through order dated 06.1.2003, referred to herein earlier.
6. It may be relevant to mention here that the learned High Court in its order of dismissal of Faizullah's revision petition, has held that the subject land/plot has been rightly allotted to Muhammad Ramzan.
7. After affirmation of the aforesaid order dated 07.12.1991, upholding the cancellation of the merger/allotment of the subject land/plot, and for its allotment to Muhammad Ramzan, by this Court as above, and having failed to have the said orders implemented by the petitioners, Muhammad Ramzan, through Writ Petition bearing No,5965 of 2007, sought from the learned Lahore High Court, an order for its implementation by executing a sale deed for the subject plot/land in his favour. The learned Lahore High Court through order dated 20.10.2008 disposed of the petition by observing, inter alia, that:- "the petitioner, if so advised, should approach the concerned authorities of the relevant department to seek the implementation of the order, which I am sure shall be done, if so permissible under the law."
Muhammad Ramzan, thus approached the petitioner. Who through order dated 18.1.2010 directed that the plot may be offered to Mohammad Ramzan, after verifying his antecedents, as per the allotment criteria, by the District Housing Committee, on the market price, to be fixed by the said Committee, and that in case the offer is not accepted by him, the plot may be disposed of through an open auction. Aggrieved by the order for determining the price of the subject land/plot at the current market value, the petitioner filed Writ Petition No,13623 of 2010. The petition has been disposed of through the impugned order.
8. Ms. Asma Hamid, the learned Additional Advocate General, Punjab submitted that Muhammad Ramzan has absolutely no right or interest in the subject land as the same has never been converted into, or/is demarcated, or numbered as a plot, and thus not made part of any housing scheme, which could have been disposed of. Secondly neither Muhammad Ramzan made any application in the prescribed form, nor deposited any amount towards the allotment sought'. She further submitted that there was/is no scheme where under an individual could have straight away applied for allotment of a plot and the same could have been entertained and granted by the Additional Secretary or for that matter, by any other officer singularly. Ms. Asma Hamid further submitted that at the relevant time it was only the District Housing Committee that was competent to make allotments and that too of a plot duly demarcated in a certain scheme, and after following a certain procedure. She submitted that the order dated 06.2.1991, in terms whereof the Additional Commissioner, Sahiwal, observed that in the event of cancellation of merger of the subject land with the plot of Faizullah, Muhammad Ramzan shall be given preference at the time of its allotment, and so also the order dated 07.12.1991, of the Additional Secretary (DVE) HPO department, directing that the subject land be allotted to Muhammad Ramzan, were patently illegal, and were not binding, or lawfully enforceable orders, for the reason that the same were clearly violative of the relevant scheme of allotment and the land grant policy in vogue at the relevant time, even otherwise according to the learned Additional AG, none of the two officers were competent or authorized to make the kind of orders that they made. She submitted that in any event the orders were not acted upon, and no .amount was deposited by Muhammad Ramzan in pursuance thereof and the matter was, upon an application made by Muhammad Ramzan to the Director General, Housing and Physical Environmental Planning Department, for implementation of the Court order, referred to the District Housing Committee, the Committee being the appropriate/competent forum, who after thoroughly dilating upon the matter in its meeting held on 29.10.2003, whilst observing that neither is the subject plot been measured or demarcated, nor has it been numbered as a plot forming part of any housing scheme, and that the same has also not been formally allotted to Muhammad Ramzan, noted that there was no such policy where under the land could have been allotted, and further that in terms of the Land Disposal Rules, 2002, plots measuring 5 Marlas are to be disposed of through auction only. It was further noted that none is authorized or competent to dispose of such a plot otherwise. Muhammad Ramzan's request was therefore declined by the. Deputy Director, Housing Physical and Environmental Planning through letter dated 11.5.2003. However, Muhammad Ramzan did not disclose the above, while seeking implementation of the order dated 07.12.1991, through his writ petition, the petition was thus, as noted earlier, disposed of through order dated 20.10.2008. According to learned Addl. AG, it was in pursuance of the said order, that the petitioner, through order dated 18.1.2010, directed that the land may be offered to Muhammad Rahman, but the offer, as stated in the order itself, was to be made after verification of his antecedents, by the District Housing Committee, as per the allotment criteria, and that too only at the market price to be determined by the said Committee. She submitted that the said order also cannot be termed as an allotment order, as clearly the same merely provide for offering the land, only as per the allotment criteria, and at the market price only.
She further submitted that in terms of Disposal of Land by Development Authorities (Regulation)
Rules, 2002, it was only the District' Housing Committee that could have made allotment, and thus the District Housing Committee, after considering the above matter its meeting dated 03.3.2010, whilst noting that as per the prevailing policy plots of more than 5 marlas can only be disposed of through public auction, after wide publicity, but since notification No,SO(D1)27/2002 dated 01.11.2002, provided that in special circumstances the Government may dispose of such plots otherwise also, decided to refer the matter to the Government, for re-consideration. However, Muhammad Ramzan, instead of waiting for the Government decision, filed the writ petition which was disposed of through the impugned order. Ms. Asma Hamid further submitted that in any event, Muhammad Ramzan was/is not entitled to the subject land at the price that prevailed in the year 1991, when the Additional Secretary ordered allotment in his favour. She submitted that the State land cannot be doled out as a matter of grace or by way of a bounty. She submitted that memo No,1408/AURD-69/3264 dated 24.4.1969, also places prohibition on making allotment of land/plot while deciding appeals, as it is only the District Housing Committee, or such other authority which may have been specifically authorized by the Government, that could have made any allotment.
The learned Additional Advocate General further submitted that in terms of clause 13(d) of the Martial Law Instruction No,23, prevalent at the relevant time, any plot measuring 5 marlas or above could not have been disposed of other than by way of a public auction, In support of her contention, that even where the allotment of land may have been permissible other than through public auction, such could have been made only at the market price, that be determined within a reasonable proximity of the time when, the payment is made, referred to the judgment, rendered in Civil Appeal No,2379 of 2006 (Faisalabad Development Authority through its Director General and others v. Muhammad Ilyas Paracha and others) on. 20.9.2017, wherein this Court held, that in view of the provisions of Disposal of land by Development Authorities (Regulation) Ordinance, 1998, FDA (the development agency in that case) has no discretion to accept a price below the market price, and ordered that in case the market price determined by the FDA is not acceptable to the respondent (seeking allotment), they shall peacefully surrender the vacant possession of the land.
She also relied on order dated 18.12.2014 passed in C.P. No,214-L of 2014 (Government of Punjab through Senior MBR Lahore etc. v. irfan Hafeez), whereby this Court held that the grant of State property is not a bounty, rather it has to be done within the parameters of the concerned scheme.
She then referred to a passage from order dated 01.4.2014 passed by this Court in C.P. No,2022-L of 2010 (Hafeez Akhtar Randhawa v. Member (Colonies) BOR) which reads 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 this 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."
9. The learned Additional Advocate General also referred to order dated 23rd July, 2015 passed in C.Ps. Nos, 1504-L and 1505-L/2015 etc. titled as Hamza Sugar Mills (Pvt.) Limited through its GM v.
Province of Punjab through District Revenue Collector, wherein this Court held that "it is trite law that public functionaries can deal with public property only under a prescribed procedure within the parameters of law under a duly sanctioned scheme and not at their whims. Hence, we are not inclined to grant permission to revenue officials to sale State land where there has been non- compliance with the requirements of law."
10.The learned Addl. AG contended that the right of transfer of a plot of land would vest in a party only when a formal order for such transfer, and that too in accordance with the provisions of relevant law, scheme and rules, has been made, so that the transaction may become a past and closed transaction and the subject plot may not remain available for disposal. She further submitted that it is in such eventuality only that the transfer of the subject plot would not be amenable to any change in law, rule, scheme and/or policy, and similarly the price payable for transfer of the plot would be the price prevalent at the time the transfer is affected formally. In support of her contentions, the learned Addl. AG relied upon the case of Mian Rafi-ud-Din and 6 others v. Chief Settlement and Rehabilitation Commissioner and 2 others (PLD 1971 SC 252) wherein a larger Bench of this Court held as follows: "It is necessary, in my view, to keep in mind that there is a distinction between the right to claim a transfer and the right to the transference of the property itself. The provisions of the Schedule indicated the persons or the category of persons who can claim the transfer of a particular property but the right to the transfer of the property accrues or becomes vested only after a final order for such transfer has been made in accordance with the provisions of the Act itself, the Schemes, the rules framed under the Act and the instructions from time to time issued. Until a final order of transfer has been made it cannot be said that the property has been disposed of and is no longer available for transfer. It is only when a property is no longer available for transfer that an order of the Central Government laying down a different mode of disposal will not affect it, on the principle that a change in the mode of transfer cannot reopen a past and closed transaction."
In the case of Province of Punjab v. District Bar Association (2014 SCMR 1611) cited by Ms. Asma Hamid, this court held that no person has any right or title in the State land until a written order has been passed and the allottee/grantee has lawfully taken over its possession.
12. On the other hand, Mr. Tafazul Haider Rizvi, learned counsel for respondent No,1, submitted that in the present case there is no issue as to whether the order dated 07.12.1991 passed by the Additional Secretary (Dev.) Housing and Physical Environmental Planning, for allotment of the subject plot was lawful or otherwise, or as to whether the subject land can be transferred in favour of Muhammad Ramzan in pursuance of the said order or not, as not only the petitioner-department, subsequent to the above order, and through order dated 18.1.2010 once again accepted Muhammad Ramzan's request for allotment of the subject plot but the order dated 17.12.1991, has also been upheld by this Court through order dated 06.1.2003. Learned counsel submitted that after having failed in its machinations to retain the subject plot Faizullah filed a suit challenging the cancellation of merger of the subject plot in his favour and its allotment in favour of Muhammad Ramzan, however the concerned Civil Judge, upheld the order dated 07.12.1991, and dismissed the suit which judgment and decree was sustained throughout, and ultimately upheld by this Court. Mr. Rizvi further submitted that the Deputy Commissioner Sahiwal, whilst declining Muhammad Ramzan's application for allotment did not say that any law, rule or scheme prevented him from making such allotment, but the only reason given was that the plot has already been leased out in favour of Faizullah. He further submitted that such ground/reason was absolutely untenable and mala fide as, in the first place the merger/allotment of the subject plot in favour of Faizullah, as subsequently found was wholly illegal and mala fide and, secondly the same was made despite pendency of Muhammad Ramzan's application which application was in fact left in the cold and was suppressed in order to effect the surreptitious, fraudulent and illegal merger in favour of Faizullah.
Learned counsel also submitted that had the department's orders dated 06.2.1991 and 07.12.1991, been illegal and/or violative of any law, rules or scheme and/or policy, such would have been pleaded by the petitioners in the suit filed by Faizullah, culminating into a petition before this Court.
On the contrary, the learned counsel submitted, the petitioners through their written statement filed in the above suit, submitted that the order dated 07.12.1991 was rightly passed by the concerned Additional Secretary, they merely pointed out that Muhammad Ramzan's application in that regard was not submitted in the prescribed form. Learned counsel further submitted that no law, rule, regulation and/or policy was in vogue, nor has any been so cited by the petitioners, which would have prevented the allotment of the plot in favour of Muhammad Ramzan. He submitted that reference to the Ordinance 2002 and various rules, notifications and/or policies is wholly irrelevant as the same neither pertain to the relevant period, nor are in respect of housing scheme wherein the subject plot is situated. As regards the purported decision of the District Housing Committee made on 29.10.2003 and letter dated 11.5.2003, as referred by Ms. Asma Hamid, learned counsel submitted that neither did Muhammad Ramzan received any such letter nor was the purported decision conveyed to him in any manner, and in fact both the above documents were not brought to fore even during the proceedings before the learned High Court. Mr. Rizvi submitted that the mala fide of the petitioners is patently obvious, as they not only allowed the merger of the subject land in favour of Faizullah, illegally and unauthorizedly, and despite pendency of Muhammad Ramzan's application, but also persisted in extending undue favour to Faizullah, despite clear findings of the inquiry report that the merger was illegal and was affected with the connivance and active support of the functionaries of the petitioners, and despite order for cancellation of the merger way back on 07.4.1990, which order was upheld by the departmental hierarchy throughout and rectified by the Courts up to the level of this Court, it was only a long time after the order dated 20.10.2008 of the learned. High Court, directing the petitioner No,1 to retrieve the possession of the subject plot, that the petitioners recovered the possession from Faizullah. The learned counsel further contended that it would be wholly unfair and unjust to seek from Muhammad Ramzan the prevailing market price of the subject plot, as he has applied for allotment way back in June 1982 and even the allotment order was made in the year 1991, and the delay in transfer of the plot has been caused because of the indolent and mala fide attitude of the petitioners, whereby Muhammad Ramzan has been deprived of his right to possess and enjoy the property, on the one hand, and on the other he is being saddled with an exorbitant price which is wholly unjust and against all cannons of equity and fair play, He further submitted that had it not been for the relentless efforts of Muhammad Ramzan, the subject plot would never have been retrieved, which was usurped by Faizullah against a nominal payment of Rs,139 per Marla, as against the price of Rs,2400/- per Marla, that was prevalent at the relevant time for the plots in the Housing Scheme ADS-II, Sahiwal, where the plot is situated. He urged for dismissal of the appeal.
13.Heard the learned counsel for the parties and perused the record with their assistance.
14.The subject land/plot is situated in a Low Income housing scheme known as ADS-II, Sahiwal.
Faizullah who was an employee of the petitioner department was allotted plot No,75-A/F, Farid Town, Sahiwal which was adjacent to the subject land/plot. Taking undue advantage of his position and in connivance of his colleagues, the functionaries of the petitioner department, he purportedly got the subject land/plot merged into his plot illegally. The purported merger was effected despite the pendency of Muhammad Ramzan's application for allotment of the subject land/plot, and despite the fact that through the said application Muhammad Ramzan has informed/cautioned the petitioners that Faizullah is seeking to usurp the same. By order dated 02.2.1982, Muhammad Ramzan's request for allotment was rejected by Deputy Commissioner, Sahiwal. However in pursuance of an inquiry report, the purported merger of the land/plot in favour of Faizullah was cancelled vide order dated 07.4.1990. Subsequently while disposing of separate appeals filed by Muhammad Ramzan and Faizullah respectively, the Additional Commissioner (Revenue), Multan Division, through order dated 06.1.1991, directed that Muhammad Ramzan be given preference at the time of allotment of the subject land/plot, and through order dated 07.12,1991, the Additional Secretary, whilst dismissing the revision petition of Faizullah, ordered allotment of the subject land/plot in favour of Muhammad Ramzan. The said order of allotment was challenged by Faizullah through a suit. One of the issues framed and decided by the concerned Civil Judge, in aforesaid suit, was as to "Whether the order of the D.C. dated 7.4.1990, order of the Addl.
Commissioner Revenue Multan dated 06.1.1991 and order passed by Addl. Secretary on 07.12.1991 are unlawful, void, without authority, illegal and inoperative against the right of the plaintiff?" which issue, along with other relevant issues was decided against Faizullah and in favour of Muhammad Ramzan, and the suit was accordingly dismissed. The judgment was upheld throughout and upto this Court. In fact the learned High Court in its judgment dated 29.10.2011, whilst dismissing Faizullah's revision petition against the said judgment and decree, has held that "Muhammad Ramzan has correctly been allotted the aforesaid area as plot No, 75-B/F" and further that "the matter was brought in limelight by respondent No,3 through application to the Deputy Commissioner and the Anti-Corruption Establishment", and so also this Court, while dismissing Faizullah's petition, through order dated 06.1.2003, has rejected his contention that the subject plot, described as 75-B/F, was non-existent and could not have been allotted to Muhammad Ramzan and has held that "the existence of plot is apparent from Scheme No,2 and its market value was Rs,2400/- per Marla" but the petitioner paid Rs,139/- per Marla on the pretext that the additional land being vacant could not have been allotted to anyone else which according to him was the part and parcel of Scheme No, 1 ." and quoted with approval a passage from the aforesaid High Court judgment as follows:- "10. Plot No, 75-A/ is not an excess area but is an independent plot bigger in size of the petitioner's plot. It has been carved out as an independent plot and given a separate number. It was part and parcel of Scheme No,2 and its market value was Rs,2400/- per Marla, but the petitioner under the pretext of merger paid the price of Rs,139/- per Marla claiming under Scheme No,1 Petitioner procured the disputed area through mis- representation allotable under another scheme and as such could be proceeded against in terms of the agreement referred above. He has obtained it through mis-representation, therefore, the Deputy Commissioner was competent to cancel the plot, the allotment having been made in violation of the scheme and conditions attached therewith. Respondent No,3 Muhammad Ramzan has correctly been allotted the aforesaid area as Plot No, 75-A/F, Farid Town, Sahiwal...... The matter was brought in limelight by respondent No,3 through application to the Deputy Commissioner and the Anti-Corruption Establishment..........
15.It was in pursuance of the above order and judgments and for the reason that the petitioners were avoiding to comply therewith that Muhammad Ramzan approached the learned High Court for implementation thereof through Writ Petition No,5965 of 2007, which petition was decided by the learned High Court through order dated 20.10.2008, in terms as noted earlier. However, although the petitioner in his order dated 18.1.2010, whilst noting that in its order dated 20.10.2008, the learned High Court has observed that the order dated 07.12.1991 of the petitioner department, having been upheld up to this Court, has attained finality, accepted Muhammad Ramzan's request for allotment of the subject land/plot, but with a rider that the same may be offered to him, after verifying his antecedents as per allotment criteria by District Housing Committee and at the market price, to be fixed by the District Housing Committee, which order has been modified by the learned High Court through the impugned judgment.
16. As noted earlier, the order for allotment in favour of Muhammad Ramzan has throughout been upheld by the various judicial forums, and ultimately by this Court. In their written statement filed in Faizullah's suit, the petitioners have candidly vouchsafed the proprietary of order dated 07.12.1991, for allotment in favour of Muhammad Ramzan by stating that the order was rightly made. It may be relevant to note here that in the earlier order dated 02.2.1985 also, whereby the Deputy Commissioner, Sahiwal, declined Muhammad Ramzan's request for allotment, no reason other than that the subject plot had already been leased out in favour of Faizullah was mentioned. It was not stated there that his request was contrary to/or violative of anyllaw, rule, scheme or policy. The petitioners has not been able to cite any law, rule, policy, pertaining to the relevant period and/or scheme, disentitling Muhammad Ramzan from allotment/transfer of the subject land/plot. As regard memo No,1408/AURD-69/3264 dated 24.4.1969, referred by the learned Addl. AG, whereby the appellate authority was purportedly prohibited from making allotment, we may observe that firstly, the said notification has not been placed before us, and secondly the same being of the year 1969 cannot, without there being any material to support that it was in force at the relevant time also, be presumed as being so effective. Similarly clause 13(d) of the M.L.A's Martial Law Instruction Zone "A", also is of the time much before the subject order was passed, as the same bears "17.8.1977" as its date. Even otherwise it merely required the application for allotment to be made on a prescribed form, along with the requisite deposit. Whereas the Disposal of Land by Development Authorities (Regulations) Rules, 2002, having evidently been promulgated in the year 2002, cannot have retrospective application. It is a cardinal principle of law that in the absence of a stipulation to the contrary, any change in law affecting substantial right have prospective application only. We may also observe here that had there been any hitch in the allotment of the subject land/plot in favour of Muhammad Ramzan, the same would have been mentioned by the Deputy Commissioner in his order dated 2.2.1985, whereby he declined Muhammad Ramzan's request, he rather did so merely for the purported reason that the land has been allotted to Faizullah already.
In any event and as noted earlier, the order for allotment in favour of Muhammad Ramzan having been upheld upto this Court, and the petitioners itself through its order dated 18.1.2010, which order has been modified through the impugned order in respect of the price only, having offered the subject land/plot to Muhammad Ramzan, the petitioners cannot now avoid compliance of such order. However, since till date Muhammad Ramzan has not made any payment towards the price of the subject land/plot, and, as rightly contended by the learned Add!. AG, the land cannot be doled out to Muhammad Ramzan E at the price prevailing way back in the year 1991, it would therefore be only just and fair that Muhammad Ramzan be required to pay the .prevailing market price of the land/plot for its allotment and transfer in his favour.
17. We would in the circumstances, while converting this petition into an appeal, dispose of the same in the forgoing terms.