CH. MUHAMMAD IQBAL, J. Through Constitution Petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 filed by the petitioner against the respondents and challenged the vires of show cause notice dated 01.07.2010 as well as order dated 23.07.2010 passed by the Member (Colonies), Board of Revenue, Punjab who withdrew its letter dated 13.06.2006 and cancelled conveyance deed of land measuring 400-Kanals earlier executed in favour of the petitioner through private treaty .
2. Brief facts of the case as contained in the petition are that the petitioner approa ched the Provincial Government for the purchase of state land measuring 400-Kanals comprising Khasra Nos.28 4, 475/314, 477/315, 479/316, 317/1, 318/1 situated in village Rakh Makhiala, Tehsil Chakwal and vide letter dated 13.06.2006 issued by the Board of Revenue, the above said land was sold out to the petitioner through a private treaty . The Hon'ble Supreme Court of Pakistan in case HRC No.7581-P & 9059-P/2009 took a suo moto notice regarding sale of state land through private treaty which were finalized during the last five years and the case of the petitioner was included in the said list. A committee was constituted to examine the 68 cases finalized during the last five years and after recommendation of the committ ee a show cause notice was given to the petitioner for the cancellation of the sale deed of the state land purchased through private treaty . The Member (Colonies), Board of Revenue, Punjab vide order dated 23.07.2010 by invoking the jurisdiction under Section 30 (2) of the Colonization of Govt.
Lands Act, 1912 withdrew its letter dated 13.06.2006 and cancelled the conveyance deed in favour of the petitioner .
Hence, this writ petition.
3. I have heard the arguments advanced by the learned counsels for both the parties and gone through the record with their able assistance.
4. The Member , Board of Revenue, issued letter on 13.06.2006 for the transfer of land measuring 400-Kanals comprising Khasra Nos.284, 475/314, 477/315, 479/316, 317/1, 318/1 situated in village Rakh Makhiala, Chao Saidan Shah, Tehsil & District Chakwal in favour of the present petitioner through sale by private treaty for flourishing of industrial activities and the land was transferred in favour of the petitioner on 15.07.2006. Section 10 of the Colonization of Government Lands Act, 1912 deals with the power of Memb er (Colonies), which provision is read as under:- "10. Issue of statements of conditions of tenancies.-
(1) The Board of Revenue subject to the general approval of the Government may grant land in a colony to any person on such conditions as it thinks fit.
(2) The Provincial Government may issue a statement or statements of the conditions on which it is willing to grant land in a colony to tenants.
(3) Where such statements of conditions have been issued, the Collector may, subject to the control of Board of Revenue, allot land to any person, to be held subject to such statement of conditions issued under sub-section (2) of this section, as the Collector may by written order declare to be applicable to the case.
(4) No person shall be deemed to be a tenant or to have any right or title in the land allotted to him until such a written order has been passed and he has taken possession of the land with the permission of the Collector . After possession has been so taken, the grant shall be held subject to the conditions declared applicable thereto."
The above provision confers only limited jurisdiction upon the Member Colonies Board of Revenue to issue the statement of conditions of tenancies but no provision is available for permanent transfer of any title of the state land to any individual entity . With regard to sale of state land through private treaty the Hon'ble Supreme Court of Pakistan in a Suo Motu Case titled Haji Muhammad Saeed constituted a committee to examine the 68 transactions of sale of state land through private treaty . The said committee finally reached the conclusion regarding non- existence of any policy whereby the state land could have been sold out through private treaty . The recommendations of the committee are reproduced as under:- "The sale in favour of Ghareeb Wall Cement was neither covered under any policy or scheme nor was it in accordance with law. Since the sale was affected for the expansion of the factory which has provided employment opportunities in a backward area, the Committee recommends that the sale be cancelled, and, at the option of the purchaser , the said land may be given to them on long lease in accordance with law ."
On the foundation of the aforenoted recommendations/report of the committee dated 08.06.2010 the Hon'ble Supreme Court directed the Member (Colonies), Board of Revenue, Punjab to take action as warranted by law. For ready reference, order of the Hon'ble Apex Court dated 08.06.2010 is reproduced as under:- "The committee constituted to inquire into each of the allotments, has submitted a comprehensive report, making its recommendations after hearing the parties concerned. The Secretary (Colonies), Board of Revenue, is empowered to take action on the basis of such report. Accordingly it is directed that legal process based on the report, shall be initiated by the Member (Colonies), Board of Revenue, Punjab"
In compliance of the above order the Member (Colonies), Board of Revenue, Punjab initiated proceedings under Section 30 (2) of the Act, 1912 ibid which bestows jurisdiction to the Member that if any state assets have been alienated in contravention of law or policy on the subject, the Member after issuance of show cause notice and affording a reasonable opportunity of hearing to the parties, may cancel the instrument of transfer deed/sale deed and resume the land in favour of the state or may pass an appropriate order as he deems fit. For the facility of ready reference Section 30(2) of the Act ibid is reproduced as under: - "30. Acquisition of proprietary rights. (2) If, at any time, the Board of Revenue is satisfied that any person had acquired under this Act, tenancy rights in respect of any land by means of fraud or misrepresentation or was not eligible to have such rights for any reason whatsoever then notwithstanding the acquisition of proprietary rights by such person in such land or the terms and conditions of any agreement with or rules issued by the Provincial Government and without prejudice to any other liability or penalty to which such person may be liable under any law for the time being in force, the Board of Revenue may, after giving such person a reasonable opportunity of showing cause, pass an order resuming the land in respect of which proprietary rights have been acquired or reduce the area of such land or pass such order as it may deem fit."
With regard to sale of state assets through private treaty the Hon'ble Supreme Court of Pakistan in the case titled as Mian Asghar Ali Vs. Province of Punjab through District Collector & Others (2006 SCMR 936) has observed that an allotment of prime commercial State land measuring 8 Marlas plus situated within the compound of the Municipal Committee, Sahiwal was made in favour of one Mian Asghar Ali by the Member , Board of Revenue, through private treaty which allotment was later on cancelled by the Member under Section 30(2) of the Colonization of Government Lands (Punjab) Act, 1912. The said order was upheld by this Court which is as under:- "5. Against which leave to appeal is being sought contending that learned High Court could have not substituted its findings with that of the Member , Board of Revenue; banked upon statutory provision of section 30(2) of the Colonization of Government Lands Act, 1912 could be pressed into service in case of fraudulent transactions, and the sale-deed could only be cancelled for violation of its terms."
Further no exception is available to the transaction of sale deed obtained through private treaty or misrepresentation or fraudulent means and the Member (C) BOR, under section 30(2) of Colonization of Government Land Act, 1912 is well within jurisdiction to undo all such transactions even if some erroneous order has been passed regarding resumption of such land. Reliance is placed on the case titled as Mian Asghar Ali Vs Govt. of Punjab through Secretary (Colonies) BOR, Lahore & Others (2017 SCMR 118), wherein the Hon'ble Supreme Court of Pakistan held as under:- "4. Review Petitioner challenged the said judgment through Civil Petitions No.2466 to 2468 of 2004, before this Court, wherein leave was declined vide judgment dated 16.12.2004; since reported as Mian Asghar Ali v Province of Punjab through District Collector and others (2006 SCMR 936), operative part whereof is reproduced here in below:- "Independent thereof any intervention with the impugned order would tantamount to encouraging perpe tuation of patent illegal devices to protect the illegitimate gains reaped by the political vultures for unjust enrichment at the cost of public exchequer which has eroded the very moral fabric of the society ."
13. We have examined the record with the assistance of Petitioner and learned ASC for the Respondents. As noted in the narrative above, in detail that the order for the cancellation of conveyance deed through private treaty (dated 29.10.1994), was passed by the Membe r (Colonies) BoR through detailed order dated 4.7.98 (page 78 CPLA NO.2364 of 2015) pursuant to various representation and essentially on the directions made in WP No. 4039 of 1995. Therefore, it cannot be said that the impugned sale was either cancelled on the direction of the Chief Minister or for that matter in dictated exercise of jurisdiction/force command, of the Chief Executive of the Province. It may be observed that it was the Review Petitioner , as observed by this Court, in earlier round culminated into judgment reported as Mian Asghar Ali (Supra) who "exerted political influences with provincial hierarchy got 8 marlas plus prime commercial land situated within the compound of Municipal Committee, Sahiwal from Member BOR, securing relaxation of ban from Chief Minister , Punjab, precipitating in sale deed dated 29.10.1994, in violation of Municipal committee' s Policy keeping the later in darkness" against, which the Civil Review Petitions, were also dismissed as withdrawn and matter of cancellation of conveyance deed for all practical purposes attained finality and a fait accompli. No exception to the cancellation of sale deed obtained by the Review petitioner by misrepresentation and through fraudulent means, by the Member (C) BOR, under section 30(2) of Colonization of Government Land Act, 1912 could now be agitated in subsequent proceedings, founded entirely on different cause of action obliquely .
14. It may not be out of place to mention that the controversy raised by the Petitioner culminating into present Review Petition is not arising out of the order (dated 4.7.1998), of cancellation of sale deed by way of private treaty but, the order dated 16.06.2010 passed by the Member (Colonies) BoR, whereby his request for the allotment of alternate land was declined for valid reasons."
The Hon'ble Supreme Court of Pakistan in a case titled as "Muhammad Munir Ahmad Vs.The State/Member (Judicial)-VII Board of Revenue Punjab Lahore, etc." (in Civil Petition No.1030- L of 2004 wherein controversial issue was that the Revenue hierarchy including the Member , (Judicial) Board of Revenue dated 28.05.2014, cancelled the allotment of state land under Section 30(2) of the Act ibid, which cancellations were maintained by this Court vide order dated 13.06.2014 passed in Writ Petition No.16929 of 2014. The orders of Revenue hierarchy as well as of this Court were further assailed and the Hon'ble Supreme Court of Pakistan vide order dated 05.08.2020 upheld the said cancellation order and leave was refused by dismissing said civil petition. Reliance can be placed on the cases titled as "Province of Punjab through Collector , Sheikhupura VS Anjuman Talim-ul- Islam and others" (PLD 1987 SC 123), "Syed Mazhar Hussain Shah throug h L.Rs VS Member , Board of Revenue, Punjab, Lahore and others" (2006 SCMR 959) and "Muhammad Manzoor VS Province of Punjab and others" ( 2011 CLC 494 Lahore).
5. The petitioner requested to the Provincial Government for the purchase of the state land through private treaty but presently neither any provision available in the revenue laws nor any policy exists in field for the sale of state land through private treaty . The Hon'ble Supreme Court of Pakistan resolved the controversy of sale of state assets through private treaty in case titled as Province of Punjab through Secretary revenue and others Versus District Bar Association, Khanewal and others ( 2014 SCMR 161 1) which is as under:- "9. According to the aforesaid notificati on sale of available State land to private individuals/organizations on demand without open auction has been stopped for the following reasons:- "(a) At the moment, the Colonization of Government Lands (Punjab) Act, 1912, regulates the grant of State land.
The tenor of the law, especially of section 10 of the Act is that State land is dispose d of under a general scheme of tenancy or otherwise. The said law does not authorize the Government to dispose of State land to an individual of choice and that too, without fair competition.
(b) The argument that the sale was not tainted by discrimination because there was no other applicant competing for the sale was also untenable as the land had not been put to public auction. In fact, opportunity of competition was virtually denied to everyone else.
(c) In the absence of fair competition, the sale could not be construed as transparent."
6. Admittedly , the land in question is a public property and its designated custodians are placed under extraordinary obligation to show the utmost loyalty to the national as well as public cause and to protect, safeguard, preserve the state assets from the fraudsters and the state assets cannot be doled upon any person through private treaty to extend favoritism, nepotism and for undue enrichment of individuals at the resources of public, meant for ultimate welfare and betterment of people. The state land is a public property which cannot be left vulnerable to the whims and caprice of the intending purchasers but if after an objective resolved alienation of such assets is needed then it shall be disposed of through unrestricted public action, which is the most suitable universally recognized transparent standard for fetching compatible consideration amount to the actual value of the said property .
Reliance is placed on the judgment decided by the Hon'ble Supreme Court of Pakistan in Civil Petition No.2022-L of 2010 titled as Hafeez Akhtar Randhawa Vs Member (Colonies) , Board of Revenue which is 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 Vs. Province of Punjab (PLD 2010 Lahore 510), the Lahore High Court has also reiterated the same view .
7. Admittedly all the affairs of the state are managed and run by the instrument of written constitution as well laws and functions/ business of the department are carried out under the well described manifest written jurisdiction and each portfolio has to exercise its powers with the described precincts of its jurisdiction and any transgression whereof would be considered as illegal. Moreover according to Section 23 of the Contract Act, 1872, if any order is passed by any authority beyond his jurisdiction and against the public policy , such order in its inception is nullity in the eyes of law and never convey any absolute title in favour of the beneficiary . For ready reference, Section 23 of the Act ibid is reproduced as under: "23. What considerations and objects are lawful and what not. The consideration or object of an agreement is lawful, unless:--it is forbidden by law; or is of such a nature that, if permitted, it would defeat the provisions of any law; or is fraudulent; or involves or implies injury to the person or property of another; or the Court regards it as immoral, or opposed to public policy .
In each of these cases, the consideration or object of an agreement is said to be unlawful. Every agreement of which the object or consideration is unlawful is void."
(emphasis supplied)
With regard to contract against law and public policy , the Hon'ble Supreme Court of Pakistan in a case titled as Hameedullah and 9 others Vs. Headm istress, Government Girls School Chokara, District Karak and 5 others ( 1997 SCMR 855 ) held that:- "From the aforestated observations it is clear that the agreement between the Government and the appellant was in the nature of sale of a public office, consideration being the transfer of land. Sale of public office cannot be a legal transaction. It is completely illegal and against public policy . Therefore, such an agreement is hit by section 23 of the Contract Act, which makes it void."
(emphasis supplied)
The August Court in a case titled as Maulana Abdul Haque Baloch and others Vs. Government of Balochistan through Secretary Industries and Mineral Development and others ( PLD 2013 SC 641 ) has held as under:- "The competent authority also failed to determine the terms and conditions to be fixed in granting the relaxations sought for. In this view of the matter , in absence of the requirements of rule 98 being fulfilled in the instant case, all relaxations were granted in excess of authority and were entirely beyond the scope of the provisions of law, and therefore, ultra vires the powers granted under rule 98 of BMCR 1970 read with section 5 of the Act of 1948, and thus void. Shorn of relaxations so grant, CHEJV A has no legal sanctity and consequently remains an agreement entered into against the provisions of law , hence not enforceable.
All the key provisions of CHEJV A were made subject to a reliance on relaxations that were illegal and void ab initio, the illegality of the agreement seeps to its root. As such, no operative part of the agreement survives to be independently enforceable and the principle of severability cannot be applied to save any part thereof. The agreement is, therefore, void and unenforceable in its entirety under the law ."
In another judgment titled as Muhammad Arshad Khakwani Vs. I.U.B. and another (2011 MLD 322) this Court has held that:- "No doubt the Statutory bodies are governed under the Act, rules, regulations and statutes which are meant for the said purpose and no one is allowed to supersede the same. The University functionaries are presumed to act under the law and no one can exceed from its domain neither supersede nor deviate. If the provisions of the Act are not complied with then the Institutions cannot run smoothly as is required by the law and the guarantees provided by the Constitution of Islamic Republic of Pakistan, 1973."
On the request of the petitioner , respondent agreed to sale out the property and issued the letter dated 13.06.2006 on the basis of which conveyance deed was executed which transaction was manifestly conceived and executed in violation of Section 23 of the Contract Act, 1872, as well as policies which do not warrant the Revenue authorities to dispose of the state assets through private treaty , whereas the case laws referred by the learned counsel for the petitioner is entirely different from the facts of this case, as such no infirmity perversity or any illegality has been pointed out warranting interference by this Court in the impugned orders.
8. In view of above, this writ petition is dismissed being devoid of any merit.