CH. MUHAMMAD IQBAL, J:- This single order shall dispose of titled writ petition alongwith connected Writ Petition Nos.123-R/2009 & 20-R/201 1 as subject matter of these petitions is same as well as common questions of law and facts are involved.
2. Through instant writ petition as well as Writ Petition No.123-R/2009, the petitioners have challenged the validity of order dated 31.12.2008 passed by the Member (S&R) / Chief Settlement Commissioner / Administrator (RP), Punjab, Board of Revenue, Punjab to the extent of current market price plus 50% penalty thereof on account of unauthorized occupants, whereas in W rit Petition No.20-R/201 1, the petitioners prayed as under:- "In view of the above submissions it is respectfully prayed that the order passed by respondent No.1 may kindly be set aside and the land already allotted (6Kanals 14 Marla 180 sq.ft) may kindly be remained intact and the approved land 4-Kanal 102 sq.ft. may kindly be transferred to the petitioners in the interest of justice and fairplay ."
3. Brief facts of the case are as contended by the learned counsel for the petitioners that property No.S-57 R-1, commonly known as 2-Temple Road, Lahore (bearing Khasra No.237 land measuring 21-Kanals 11 Marlas 180- Sqft Mouza Mozang Lahore consisting of main house, servant quarters, specious lawns situated in front of the house abutting Temple Road Lahore and its back is touching the boundary line of St. Anthony High School Lahore) is an evacuee property . The Deputy Settlement Commissioner passed direction to transfer house measuring 6- Kanals 14-Marlas & 180-Sqft to Major Muhammad Umar Qureshi, the claimants and remaining 3 units / plots to be disposed of by unrestricted public auctio n vide order dated 25.02.1960. Accordin gly the above proposed area of property was allotted to the claimant on 29.02.1960 and PTO No.522121 dated 07.03.1960 was issued in his favour . One Khawaja Mehboob Ali etc., filed Writ Petition No.164-R/1984 which was allowed and order dated 18.04.1984 was set aside by this Court vide judgment dated 11.10.2000 and remanded the case to the Chief Settlement Commissioner to decide the same afresh after hearing the parties. Major Muhammad Umar Qureshi transferred main Banglow through registered sale deed dated 12.11.2004 in favour of present petitioners. After remand, the Member (S&R) / Chief Settlement Commissioner / Administrator (RP), Punjab, Board of Revenue, Punjab vide order dated 31.12.2008 passed order for sale of land to the unauthorized occupant to the extent of land measuring 12-Kanals and 153 sq.ft (including the land used in passage) Property No.S-57-R-1, Khasra No.237, Mouza Mozang Lahore at the current market price plus 50% penalty thereof to be assessed by the District Price Assessment Committee. Hence, these writ petitions.
4. Learned counsel for the petitioners submits that there is no any provision available for the sale of the land on the market price with 50% penalty; that the petitioners are entitled to purchase the land under Scheme No.VI; that remand order was not considered by the Chief Settlement Commissioner while passing the impugned order to the extent of current market price alongwith 50% penalty against allotment to the extent of 6-Kanals 14 Marlas 180 sq.ft and the said order has attained finality upto the Hon'ble Supreme Court of Pakistan; that the petitioners are in possession and they are eligible for the purchase of evacuee land under Scheme No.VI, as such, order is patently illegal against the parameters of the scheme ibid; that the petitioners never gave any undertaking before the Chief Settlement Commissioner for the purchase of the evacuee land at current market price, as such, order is illegal and liable to be set aside
5. Learned counsel appearing on behal f of the respondent states that writ petition is not maintainable as per Section 79 CPC read with Article 174 of the Constitution of Islamic Republic of Pakistan, 1973 as Province of Punjab was not made party to the lis; that the petitioners are subsequent purcha sers; that after repeal laws the evacuee land can only be disposed of under scheme 1977, as Scheme No.VI has already been repealed with promulgation of the Displaced Persons (Land Settlement) Repealing Act, 1975 and finally prayed for the dismissal of this writ petition.
6. I have heard the arguments of the learned counsels for the parties at some length and gone through the record with their able assistance.
7. Admittedly , all the evacuee urban and rural lands were transferred to the Province against paid consideration under Section 3 of the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975. For ready reference, Section 3 of the Act Ibid. Act is reproduced as under:-
3. Transfer of Property .- (1) All properties, both urban or rural, including agricultural land, other than such properties attached to charitable, religious or educational trusts or institutions, whether occupied or un-occupied, which may be available for disposal immediately before the repeal of the aforesaid Acts and Regulations or which may become available for disposal after such repeal as a result of a final order passed under sub-section (3) of section 2, shall stand transferred to the Provincial Government, on payment of such price as may be fixed by the Federal Government in consultation with the Provincial Government, for disposal:-
(a) In the case of urban properties, by the Provincial Government under a scheme to be prepared by it in this behalf; and
(b) In the case of rural properties, by the Board of Revenue of the Province under a scheme to be prepared by the Provincial Government in this behalf;
8. The Provincial Government promulgated scheme 1977 under Section 3 of the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975 for the Management and Disposal of Available Urban Properties situated in the Province of the Punjab in 1977 (The Scheme, 1977). Para 1 (d) of the Scheme ibid, contains the definition of Building Site which is reproduced as under:- "Building Site" means any vacant plot of land which is not within a well-defined compound of a permanent building and includes:-
(i) A site on which the permanent construction, if any , does not exceed in area by 1/8 of the site;
(ii) any site on which any building existe d but was completely demolished by floods, fire, incendiary or by any natural calamity .
Before the promulgation of Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975, the Chief Settlement Commissioner in exercise of power so vested with him in Section 2 of clause b & sub-clause 3 of the Displaced Persons (Land Settlement), Act 1958 issued a notification dated 16.05.1973 declaring all the agricultural lands falling within the Municipal Limits as "Building Site" and restrained his subordinate settlementth authorities to make any fresh allotment without approval of the competent authority. The said notification is reproduced hereunder:- "In exercise of powers conferred upon me under clause (b) of sub-section (3) of section 2 of the Displaced Persons (Land Settlement) Act, 1958, IO, Mr. M. Aslam Awais, C.S.P., Chief Settlement and Rehabilitation Commissioner, Punjab do hereby declare all the available evacuee urban land, including the one not yet confirmed to any person against units or evacuee land which may become available in future, in all the Revenue Estates situated within the Urban limits of a Municipal Corporation, Municipal Committee, Notified Area Committee, Town Area Committee, Small Town Committee and Sanitary Committee, or a Cantonment, throughout the Province of Punjab, as building sites, for disposal under section 13 of the said Act."
The vires of the above notification finally came under judicial scrutiny before the August Supreme Court and said notification was upheld in case reported as Muhammad Ramzan & Others Vs. Member (Rev.) / CSS & Others (1997 SCMR 1635) wherein it is held as under:- "21. It may be seen that after repeal of evacuee laws, no provisions were made for allotment of land against any pending verified P.
1. Us. Therefore, this Court while examining effect of above referred notification and repealing Act ruled that any allotment order for adjustment against P. l U. procured by private persons was completely devoid of lawful authority. Relevant Observation supporting this view appear in case of Syed Saifullah v. Board of Revenue, Balochistan through its Member (RJT) and 4 others (1991 SCMR 1255) and are reproduced here under:- Under Section 3 of the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975, a fresh scheme of Disposal and Management of urban evacuee properties was promulgated in 1977 and its para 6,11,12 and 30 deals with disposal of the urban evacuee land. For ready reference, Para-1 1 & 12 of the Scheme, 1977 are reproduced as under:-
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 disposed of un-restricted public auction.
12. Disposal of houses, shops or a 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 tenderers. 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).
The matter of allotment of evacuee urban properties by the Settlement Authorities after the repeal of Displaced Persons (Land Settlement), Act 1958 came under consideration of the Hon'ble Apex Court in the case titled American International School System Vs. Mian Muhammad Ramzan & Others (2015 SCMR 1449 ), wherein it is observed that from the perusal of above said Para of the Scheme ibid, the evacue e properties shall be transferred through sale by auction and in case if the building site having been put to auction twice fetches no bid or fetches a bid short of the reserve price then it shall be disposed of through negotiation by inviting sealed tenders.
From the perusal of the Evacuee Properties & Displaced Persons Laws (Repeal) Act No.XIV of 1975 as well as Scheme 1977, admittedly , the land in question is an urban evacuee property and there is neither any provision available in the repealing Act nor in the Scheme 1977 for the alienation of the property through private treaty . The petitioners requested that they want to purchase the land measuring 12-Kanals 153-sqft which request cannot be acceded to as per Scheme 1977. The suit property is a building site and it should be disposed of through an unrestricted public auction in terms of Para-1 1 of the Scheme 1977 ibid. It is a public property and public functionaries are the trusty custodians of the public/State land which could only be disposed of in accordance with law and most transparent and suitable modus operandi which better serve the case is putting such property to public auction. Reliance is placed on the case titled as Muhammad Ramzan & Others Vs. Member (Revenue)
Chief Settlement Commissioner & Others (1997 SCMR 1635 ) wherein the Hon'ble Supreme Court of Pakistan held as under:- "18. The Government of the Punjab Province then prepared and prescribed Scheme for the management and disposal of available urban properties (See PLD 1977 Punjab Statute page 62). Certain provisions of the Scheme were amended in 1985 (See PLD 1985 Punjab Statute page 6). The terms "available properties" and "building sites" were defined in paragraphs 1 (c) and 1(d) of the Scheme, 1977. Paragraph 6 provided that an available building site on which a person in possession has raised a permanent construction and applied for its transfer may be transferred to him alongwith an area which does not exceed three times the constructed area on the transfer price and where any person having made a permanent construction on a building site did not apply for transfer, it should be disposed of through unrestricted public auction alongwith the construction. The value of such construction shall be determined by the Deputy Administrator and paid to such a person out of the auction proceeds by such authority as may be specified. Paragraph 11 of the Scheme also provides for auction of the building site."(emphasis supplied)
Reliance is also placed on the case titled as American International School System Vs. Mian Muhammad Ramzan & Others (2015 SCMR 1449 ). For ready reference, relevant portion of American International School System case (supra) is reproduced as under:- "In the instant cases, as record shows that on mere desire of the then Chief Minister of Punjab, the Member (Colonies) BOR, Punjab doled out valuable "residual evacuee property" at a throw away price to the petitioner- School, knowing fully well that the subject property is not the State land and that the subject evacuee land could only be disposed off through open auction in terms of the Scheme, 1977 and otherwise, he was not at all competent to undertake such exercise, which authority under the Scheme, 1977 vested in the Member , Board of Revenue (Residual Properties)."
Even otherwise, the suit property measuring 12-Kanals and 153 sq.ft (including the land used in passage) Property No.S-57-R-1, Khasra No.237, Mouza Mozang Lahore admittedly is an urban property situated within the heart of the city Lahore is public property which has already been declared as building sites through notification dated 16.05.1973. It is petitioners claim that they being purchasers of land measuring 6-Kanals 14 Marlas 180 sqft from the allottee Major Muhammad Umar Qureshi on 12.11.2004 are entitled to purchase the adjacent other vacant land measuring 12-Kanals 153-sqft under settlement Scheme No.VI. Admittedly all the evacuee laws were repealed under the Act, 1975 w.e.f. 01.07.1974, meaning thereby the said scheme has also been repealed which is no more alive and no right or claim can be founded upon a repealed scheme. The stance taken by the learned counsel for the petitioners that the petitioners are entitled to purchase the said evacuee land under settlement Scheme No.VI framed under The Displaced Persons (Compensation and Rehabilitation) 1958, suffice it to say in this regard that the foundational enactment of 1958 stood repealed with promulgation of the Displa ced Persons (Land Settlement)
Repealing Act, 1975 with effect from 01.07.1974 and by operation of law the Scheme No.VI also stood repealed alongwith main statute on terminus date whereas the petitioners entered in the premises in the year 2004 how can they say that under Settlement Scheme No.VI, the evacuee land should be sold out to them.
Furthermore while passing the allotment order in favour of original allottee to the extent of land measuring 6- kanals 14-marlas and 180 sqft dated 25.02.1960, the Secretary (Urban) to the Chief Settlement and Rehabilitation Commissioner, Pakistan holds that "the remaining three plots may kindly be sold by unrestricted public auction after observing due formalities and giving do publicity." For ready reference, letter dated 25.02.1960 is reproduced as under:- Office of the Settlement and Rehabilitation Commissioner , P A K I S T A N No.384-AGH/LHR/146 II-Egertion Road, Lahore.
Dated, the 25 Feb: 1960 From Abdul Majid Khan, Esquire, S.A.L.L.B. Secretary (Urban) to the Chief Settlement & Reh: Commissioner, Pakistan.
Toth Lt. Col. J.D. Malik, Addl: Settlement Commissioner. Lahore.
Subject:- SALE OF EV ACUEE PROPERTY NO.2 TEMPLE ROAD, LAHORE.
Copies of my letter No. 1380/AGH/LHR/14 6 dated 30-12 59 and Deputy Settlement Commissioner , Civil Lines reply thereto, No. DSC-I-51 dated 6-1-60, are forwarded herewith.
2. The Chief Settlement Commissioner , has decided that as the property is very big it should be sub-divided into four units as shown in the attached plan. The original house and outhouses covering a total area of 6 kanals 14-M- 180 Sft. may be transferred to claimants according to the merits of their claims.
3. The remaining three plots may kindly be sold by unrestricted public auction after observing formalities and giving do publicity.
Sd/-Abdul Majid Khan Secretary (Urban) to the Chief Settlement & Reh: Commissioner , Pakistan.
No.384-AGH/LHR/146 Dated 25-2-1960 Copy to Deputy Settlement Commissioner , Civil Lines, Lahore, with a copy of the plan Sd/- Secretary (Urban) to the Chief Settlement & Reh: Commissioner , Pakistan.
The petitioners and their predecessor-in-interest did not challenge the allotment order dated 25.02.1960 before any forum. The said order reproduced above in Para-3 it was settled that the remaining suit property / 3-plots be sold out through unrestricted public auction, as such, said order has attained finality and fall under the past and close transaction. Reliance is placed on the case titled as Pakistan International Airlines Corporation Vs. Aziz ur Rehman Chaudhary and another (2016 SCMR 14 ).
9. Further , with regard to disposal of evacuee land, the Chief Settlement Commissioner after the repeal of evacuee laws is not competent to adopt whimsical procedure to dole the valuable state land upon the cherished one through a private treaty . All the state functioning are under strict obligation to show utmost fidelity to safeguard the benefit of the state and show extraordinary care and caution while dealing with disposal of the state assets and apply all their best intelligent potentials to protect and preserve the state assets with their utmost integrity and bonafide.
Moreover , there is no provision in the law or in the scheme for the sale of state land through a private treaty and no policy exists in which the notified officer is shown competent to dispose of the urban evacuee property through a private understanding rather it is mandato ry that disposal of evacuee/state land shall be made through unrestricted public auction as settled in American International School System case (supra), wherein the Hon'ble Supreme Court of Pakistan has held that under Paragraphs 1 (d), 11, 12 and 30 of the Scheme for Management and Disposal of Available Urban Properties, 1977, the evacuee urban properties should be disposed of through unrestricted public auction. A similar view has been laid down by the Hon'ble Supreme Court Pakistan in the case of Muhammad Din & Others Vs. Ghulam Muhammad Naseem Sindhu & Others (PLD 1991 SC 1). Further in C.P.
No.709-L/2009 titled Member (Judicial-V), Board of Revenue/Chief Settlement Commissioner , Punjab & 2 Others Vs. Sagheer Muhammad Khan & Others , the Hon'ble Supreme Court of Pakistan vide order dated 02.01.2015 settled that after promulgation of the Repeal Act 1975, the property can only be disposed of through open auction, the relevant portion thereof is reproduced as under:- "7. Considering the above, we are clear firstly that the conclusion arrived at by the learned Single Bench in para 9 of the impugned judgment, as reproduced above is incorrect and the reliance on the case of Muhammad Hussain (supra ) is also misplaced. Secondly , it is evident that as of date, the respondents can have no claim on the property in question. According to the current law and arrangements put in place by the Province subsequent to the Repeal Act the property will have to be disposed of through open public auction so that the assets vested in the Province and ultimately in the people of the Province are duly protected. This shall not prevent the Province from proceeding against the respondents or others both for recovery of compensation for occupation and use of the property and for any other action civil or criminal in this case. This petition is converted into appeal and is allowed in the above terms." (emphasis supplied)
Moreover all the organs of the state are placed under obligation to comply with the orders of the Hon'ble supreme Court of Pakistan as enshrined in Article 189 of the Constitution of Islamic Republic of Pakistan. As such supra quoted dicta of the Hon'ble August Court clearly set down the hallmark principle for disposal of urban land through unrestricted open auction, as such, the said evacuee land can only be disposed of through transparent unrestricted and widely published public auction.
As far as the arguments of the learned counsel for the petitioners that the petitioners are entitled to purchase the evacuee land under Scheme No.VI is concerned, suffice it to say in this regard that under the repeal Act, 1975, all the previous acts, policies and regulations were repealed and the Settlement Scheme made under The Displaced Persons (Compensation and Rehabilitation) 1958 was also stood repealed by operation of law w.e.f 01.07.1974.
The petitioners alleged that they purchased the allotted land from Major Muhammad Umar Qureshi on the basis of sale deed but they got possession of the suit property illegally and unauthorisedly beyond their title whereas they are not holding any title qua the said land rather they are mere illegal occupants/encroachers over the evacuee land and they are not considered entitled for any discretionary relief in constitutional jurisdiction of this Court as they came to this court with unclean hands. The Hon'ble Supreme Court of Pakistan in a case titled as "Shazia Gillani etc. Vs. Board of Revenue, Punjab, Lahore through Member Colonies, etc." (in C.P. No.732 L of 2016) has held that there is no protection to possession of usurpers of state property vide order dated 25.03.2016 and held as under:- "The petitioners are lessees of the land in question. Their lease admittedly expired in 2000 after which they have been in unauthorized possession. No case has been made out for any protection of their rights as per the notification dated 18.7.2005 which has been relied upon in this regard. The discretion of the learned High Court in terms of Article 199 of the Constitution or this Court as per Article 185 of the Constitution is not available for the protection of possession of people who are usurpers of state property . No case has been made out for interference. Dismissed accordingly ."
In another case, the Hon'ble Supreme Court of Pakistan in Civil Petition No.882-L of 2015 vide order dated 15.03.2017 held as under:- "2. We find that in the light of above circumstances, the learned High Court rightly allowed the writ petition of the respondents and restored possession of the property to them, and correctly dismissed the writ petition of the instant petitioners, who are admitted encroachers of the property and are in unauthorized possession therefore.
Resultantly, this petition is dismissed."
10. From perusal of the record it transpires that the Province has not been arrayed as party in the instant petition, which is obvious violation of Section 79 of the CPC as well as Article 174 of the Constitution of Islamic Republic of Pakistan 1973 and till date no endeavour has been made by the petitioner to implead the province as a party which inherent and fatal flaw oust the maintainability of these Constitutional Petitions. The Provincial Government is necessary party under the aforementioned provisions of law as in any suit by or against the Government if provincial Government is not made party then the suit is not maintainable, as in the absence of a necessary party no effective decree or order can be passed. Reliance is placed on the cases of Mst. Maqbool Begum etc. Vs. Gullan & Others (PLD 1982 SC 46) and Government of Balochistan, CWPP&H Department & Others Vs. Nawabzada Mir Tariq Hussain Khan Magsi & Others (2010 SCMR 115).
11. In view of above, these writ petitions are misconceived, therefore, the same are hereby dismissed being devoid of any merit.