Ch. Muhammad Iqbal, J:- This Intra Court Appeal under Section 3 of the Law Reforms Ordinance, 1972 is directed against the judgment dated 05.06.2014, whereby Writ Petition No.23-R/2010 filed by appellants was dismissed by the learned Single Judge.
2. Brief facts of the case are that the appellants (Malik Allah Ditta etc.) and others filed an application before the Chief Settlement Commissioner, Punjab for the purchase of the evacuee land measuring 328 Kanal 02 Marla situated in village Bhallarian Tehsil Chinian District Kasur on 10.01.2004. On the said application the Chief Settlement Commissioner sought report from the lower fora. The District Officer (Revenue) Kasur submitted report that land measuring 628 Kanal 02 Marla situated in village Bhallarian Tehsil Chunian District Kasur was allotted to one Mst. Noor Bhari, who sold the land to Burhan Ali etc. Later on, the said allotment was cancelled and the land was resumed in favour of the State. Burhan Ali etc., the subsequent purchasers from Noor Bhari, filed an application to the Chief Settlement Commissioner for the purchase of the land in question on the market price. This application of Burhan Ali etc. was allowed by the Notified Officer vide letter dated 27.09.1984. The petitioners challenged the above order before this Court through Writ Petition No.67-R/1988. During pendency of above lis the petitioners and Burhan Ali etc. arrived at a compromise out of the court to the effect that Burhan Ali etc. would purchase land measuring 328 Kanal and the present appellants would purchase the remaining 300 Kanal land. As per above rapprochement, this Court disposed of writ petition on 26.03.1991.
After the disposal of the above writ petition the appellants then filed application before the Chief Settlement Commissioner to purchase the land measuring 300 Kanal. This application of the appellant was partially accepted by the Notified Officer who vide order dated 24.08.2009 allowed the appellants to purchase the evacuee land to the extent of 214 Kanal at the prevailing market price plus 50% penalty. Being dissatisfied with the above said order, appellants filed Writ Petition No.23-R/2010 on the ground that the land may be sold to them at the rate of Rs.100 PIUs as provided in the scheme on the subject. This writ petition of the appellant was dismissed by the learned Single Judge vide judgment dated 05.06.2014. Hence, this appeal.
3. We have heard the arguments of learned counsels for the parties and have gone through the record with their able assistance.
4. The main request of the appellants in the instant lis is that they want to purchase the evacuee land measuring 300 Kanals at the rate of Rs.100 per PIU whereas Notified Officer offered them to purchase the land measuring 214 Kanals at the prevalent market price plus 50% penalty. As per divergent stance, major controversy revolves around following point of law and facts that: i) Whether the appellants are eligible for the offer of sale of evacuee land under the Evacuee Law / Policy? ii) Whether the Notified Officer had the jurisdiction to sell the evacuee agricultural land to sitting occupant through a private treaty?
In order to settle the first point, it is appropriate to pour a smart glance on the history, objective of settlement law as well as the policies on the subject. A dark era of slavery stretched over two centuries containing sorrow, gruesome blood bath ended with the creation of Pakistan on 14.08.1947 and after independence due to massive blood bath / killings, large scale Muslim community migrated to Pakistan by abandoning their estate and entire holdings in India. A process for rehabilitation of the evacuees was started to settle them against the land abandoned by non- Muslim communities in Pakistan. For administration and management of such properties, the Government of Pakistan initially promulgated The Pakistan (Protection of Evacuee Property)
Ordinance, 1948 to alleviate the painful miseries of the evacuees. To achieve the objective of the settlement and rehabilitation of the evacuee new law, enactments, policies were promulgated in continuation of the settlement process to redress the painful situation and to alleviate the agonies of the evacuees. In this regard beside amendments in the existence law, enactments were also made in 1956 as well as 1957 Act. Thereafter, as a final step to settle/ compensate the evacuee and to dispose of the evacuee properties, a new enactment "the Displaced Persons (Land Settlement)
Act, 1958" was promulgated. Under the new law the process of allotments of evacuee land to the eligible claimants were being made till 30th June, 1974. When the Evacuee Property and Displaced Persons Laws (Repeal) Ordinance, 1974 [which Ordinance later on was re-named as Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975] was promulgated whereby all the existent evacuee laws were repealed and fresh allotment of evacuee land to evacuee was virtually restricted only to the pending proceedings as envisaged under Section 2 of the above enactment.
According to Section 3(1) of the Act ibid all the evacuee land stood transferred to the concerned provincial governments against the paid consideration. In the said law the modus operandi was also settled for the disposal of unoccupied, occupied and unallotted evacuee land. Section 3(1)(b) of the Act ibid reads 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) ......
(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; Provided that agricultural land occupied by a person continuously for four harvests immediately preceding Kharif 1973 shall first be offered for sale to such person unless an order of ejectment has been passed against him in respect of such land.
Provided further that only so much land shall be offered to such person as does not together with the land already held by him, exceed a subsistence holding within the meaning of the Land Reforms Regulation, 1972. (emphasis supplied)
The Provincial Governments of Punjab under the aforesaid provisions (Section 3(1)(b) of the Act ibid ) framed a cheme i.e. "Scheme for Disposal of Un-allotted/Un-occupied Evacuee Rural Agricultural Land" and promulgated the same on 19.11.1974 [hereinafter referred to as the "Scheme"]. The relevant portion whereof is reproduced as under:- Scheme prescribed by the Member, Board of Revenue (Settlement & Rehabilitation Wing) Punjab, under section 3(b) of the Evacuee Property and Displaced Persons Laws (Repeal) Ordinance, 1974.
2. WHEREAS, the Central Government has, under section 3(b) of the Evacuee Property and Displaced Persons Laws (Repeal) Ordinance, 1974 authorized the Board of Revenue, Punjab to prepare a Scheme for disposal / transfer of un-allotted rural agricultural, whether occupied or un- occupied, it may be available for disposal immediately before the repeal of Settlement Acts.
3. NOW, THEREFORE, in supersession of all previous schemes framed under the repealed Settlement Acts, the Member, Board of Revenue (Settlement & Rehabilitation Wing) Punjab, is pleased to prescribe the following schemes for disposal of un-allotted occupied and un-occupied agricultural land.
4. PROVIDED that action taken under previous scheme shall not be dislocated or adversely effected in consequence of this scheme.
CHAPTER-I In this scheme unless the subject or context otherwise requires:- i) "Un-allotted land" means evacuee land which has not been allotted/confirmed against verified claims or otherwise disposed or under the provisions of Displaced Persons (Land Settlement) Act, 1958, on or before 30.06.1974. ii) "Occupied land" means evacuee un-allotted land which is in continuous possession of the occupant for four harvests immediately precedings Kharif, 1973. iii) "Un-occupied land" means evacuee un-allotted land which is not in possession of any person including the land in adverse possession after Kharif, 1971. iv) "Subsisting holding" means holding of a person within the meaning of Land Reforms Regulation, 1972."
CHAPTER II
2. The agricultural land occupied by any person continuously for four harvests immediately preceding Kharif 1973 shall first be offered for sale to such person on the following terms and conditions:- i) That such Persons/has/have been in actual cultivating possession thereof for a period of at least four harvests immediately preceding Kharif 1973 upto the extent of subsisting holding within the meaning of the land Reforms Regulation 1972 i.e. 12 1/2 acres.
In case any other land is held by such occupant on the basis of an independent right, such holding shall be taken into account for determination the maximum limit specified above. ii) The occupant shall submit his option for purchase of land held by him to the Assistant Commissioner concerned who shall forward the same, after due verification, through the Deputy Commissioner to the Member (Revenue), Board of Revenue, Punjab. iii) The sale price shall be:- Determined and payable at the rate of Rs.100/per P.I.U. and for the purpose of determining the units of land to be sold, itsclassification shall be based on Rabi, 1974. ................................ ................................. .................................
The concession to purchase land contemplated in the preceding paragraph shall be extended only to these occupants whose total land holding including the land intended to be purchased:
(i) Does not exceed the subsisting holding:
(ii) The intending purchaser is in continuous possession of the land and no order for ejectment has been passed against him in respect of such land;
(iii) Is claimant informer has not submitted information in respect of such land before 30.06.1974.
(iv) Provided that if the intending purchaser does not apply for the purchase of the land by a specified date such land shall be sold through open auction at the reserved price of Rs.100/per P.I. unit. The procedure to auction this land shall be the same on prescribed under Chapter-IV of the Scheme (i). Occupancy tenants on the evacuee land shall be eligible to get the proprietary rights in the tenancy on-payment of Rs.10/per P.I.U. for which the last date of payment shall be 07.11.1989.
Chapter-III Disposal of unallotted occupied agricultural land where the land holding of the occupant exceeds the subsisting holding.
3. All un-allotted occupied rural evacuee agricultural land held by occupants in excess of `Cultivating holding' which does not fall under para 2 ibid, shall be put to auction according to procedure laid down in Chapter-IV in respect of un-allotted and un-occupied land; Provided that the un-authorized occupant shall have the right of first purchase. `(3)'."
CHAPTER-IV "4. All the available un-allotted and un-occupied vacant rural agricultural land will be disposed of by means of un-restricted open public auction ...... (emphasis supplied)
Further, for disposal of the available or likely to be available rural agricultural evacuee land an elaborate procedure has been provided by the Board of Revenue, Punjab in its Policy Notification dated 02.12.1998, which is as under: No.1407-98/3594-RL(A)I.
Board of Revenue, Punjab, Farid Kot House Lahore.
Dated the 02.12.1998.
From The Board of Revenue: Punjab (Settlement & Rehabilitation) Wing.
To 1) All the Commissioners of Division, in the Punjab; 2) All Additional Commissioners (R) of Divisions, in the Punjab.
3) All Deputy Commissioners, in the Punjab; 4) All Additional Deputy Commissioners (G), in the Punjab 5) All Assistant Commissioners, in the Punjab.
6) All Officers at Headquarters Office, Lahore.
Subject: DISPOSAL OF AVAILABLE AND LIKELY TO BE AVAILABLE RURAL AGRICULTURAL LAND (EVACUEE) IN THE PUNJAB.
Memorandum: A scheme for the disposal of available and likely to be available rural agricultural land (evacuee) in the Punjab was circulated vide this office circular No.915-POL/74, dated 19.11.1974. A copy of the Scheme is again enclosed for ready reference. A time schedule for the disposal of the land has been prepared. The available or likely to be available land is categorized as follows:- A) `Occupied Land' where the occupant is in possession of the land four harvests prior to Kharif 1973 and his land holding does not exceed subsistence holding of 12 1/2 acres.
B) 'Occupied Land' the occupied land in excess of the subsistence holding and the land occupied not falling under Category 'A'.
C) 'Un-Occupied Land' which is neither allotted nor occupied by any person.
2. As regards Category `A` the occupant is required under Chapter-II Para 2(ii) of the Scheme to submit his option to the Assistant Commissioner concerned to purchase the said land. The Assistant Commissioner after scrutiny of record will submits report to the Member, Board of Revenue/Chief Settlement Commissioner Punjab through the Deputy Commissioner for approval of sale of land at Rs.100/P.I.Units.
3. As far as Categories (B) and (C) are concerned, the land is to be disposed of through open auction under Chapter-III Para 3 of the Scheme, by a Committee constituted thereunder.
However, an un-authorised occupant is given the right of first purchase on payment of the price equal to the highest bid offered in open auction.
4. ...............
CATEGORY 'A a) Wide publicity will be made in the press requiring the occupants to exercise their option to purchase the land by 31.01.1999. No further extension in time will be granted. On receipt of the option, the Assistant Commissioner concerned shall submit the case within 15 days on the prescribed proforma to the Deputy Commissioner who after scrutiny will forward it within 15 days to the Board of Revenue (S&R Wing), Punjab. b) c)
CATEGORY 'B AND C' a) All Assistant Commissioners shall prepare schedule of auction of the land with the approval of the Deputy Commissioner and furnish a copy thereof to the Board of Revenue (S&R Wing), Punjab for information. b) The schedule will be given wide publicity through advertisement in at least two national "Dailies" and also through other like beat of drum, pasting of notice at Tehsil Headquarters etc. The whole exercise including drawing of schedule, approval of auction, recovery of bid money and implementation in revenue record shall be by 30.06.1999 under the Scheme. .............................. ..............................
Sd/- Secretary (Settle: & Reh;)
Board of Revenue, Punjab Faird Kot House, Lahore.
(emphasis supplied)
The conjoint reading of Section 3(1)(b) of the Act ibid with Chapter II para 2 Part Second (Iv), Chapter 3, para 2 as well as Proviso to para 2 and Chapter 4 of the Scheme as well as the policy notification dated 02.12.1998 leads to conclude that the unallotted/ unoccupied evacuee land shall be disposed of only through unrestricted open public auction. But for the unallotted occupied land a modus operandi has been described in Chapter 1, Item No.ii containing qualification for the purchaser of the evacuee land i.e. first stipulation is that the unallotted occupied land should be offered for sale to such person who was in possession of said land for four harvests immediately preceding Kharif, 1973 unless an order of ejectment has been passed against him and the second stipulation for sale of the unallotted occupied land to the occupant was that his total holding including the evacuee land occupied by him shall not exceed 12 1/2 Acres (100 Kanals) as subsisting holdings provided in Land Reforms Ordinance, 1972. Any disqualification of occupants as stated above, the land shall be disposed of through un-restricted open public auction. The target date for exercising the option to purchase the land was also fixed in the above said policy but from perusal of the record, it transpires that the appellants filed application to the Chief Settlement Commissioner on 10.01.2004 i.e. much after the lapse of the target date. Moreover it was mandatory for the appellant to prove that their entire land owned or occupied was below the ceiling of subsisting holding as envisaged under Land Reforms Ordinance, 1972, but no believable and trustworthy record has been produced which flaw amounts to withholding of material information, thus an adverse presumption validly goes against them.
5. Furthermore, the land in question was originally allotted to a so-called claimant Mst.Noor Bhari who sold out the same to one Burhan Ali and the said land after cancellation of allotment of original alottee Nor Bhari was resumed in favour of the State, thus it went out from the category of unallotted land. But in contravention of the above law the then Chief Settlement Commissioner, Punjab passed order dated 27.09.1984 for the sale of the resumed evacuee land on market price.
The present appellants challenged the said order through Writ Petition No.67- R/1988, during the pendency of the above petition, the appellants arrived at a compromise with the private respondents (of the said writ petition) in the manner that the appellants would purchase the land 300 Kanal and the other party would purchase rest of the land measuring 328 Kanal, which private mutual understanding was conspicuously against the law. Thus any agreement / compromise or contract made in violation of law has no legal sanctity and that would be nullity in the eyes of law.
Even otherwise after the cancellation of the allotment of the allottee and resumption in favour of the state, the land could not be claimed as unallotted occupied land as such the resumed land is not available for offer for sale to the occupant being ineligible.
6. Now adverting to the second question i.e. whether the Notified Officer has the jurisdiction to sell the evacuee land through private treaty". Admittedly after the repeal of evacuee laws with effect from 01.07.1974 by promulgation of Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975 all the evacuee land under Section 3 of the Act ibid by operation of law stood vest with the provincial government against the paid consideration thus the said land has attained the status of public property and its disposal has to be made as prescribed under the law, scheme policy on the subject and it is settled that when law requires a thing/act to be done in a particular manner that must be done according to the described modus operandi otherwise it wears no sanctity, effectiveness in the eyes of law. Admittedly the jurisdiction of the Notified Officer has been restricted to the pending proceedings as envisaged under Section 2 of the Act, 1975 and he has no unlimited power rather he had to exercise its jurisdiction with the precincts prescribed under the law regulations, rules, policies and instructions on the subject. Any unwarranted act of a state functionary is liable to be set at naught without any hesitation. Undoubtedly the public functionaries are the ostensible custodians of the state assets and they cannot be allowed to dole the state assets upon their cherished / blue eyed persons at their own whims and fancies.
Undeniably the sacred public assets can only be disposed of in extraordinary transparent manner by leaving nil space for doubts and in this regard the most transparent and suitable modus operandi which better serves the public cause is putting such disposable property to unrestricted public auction in order to fetch befitting better price. The object of the above mode is to eliminate the nefarious elements of favoritism, nepotism and the corrupt practices as well as to provide a fair equitable opportunity to every citizen of Pakistan to take advantage from public assets/opportunities and to improve his financial and social status. The Hon'ble Supreme Court of Pakistan in a case titled as Muhammad Ramzan & Others Vs. Member (Revenue) Chief Settlement Commissioner & Others (1997 SCMR 1635) while deciding the mode of disposal of available evacuee properties, held that "... it should be disposed of through unrestricted public auction". The above celebrated principal has been reiterated in case cited as American International School System Vs. Mian Muhammad Ramzan & Others (2015 SCMR 1449) wherein the Hon'ble Supreme Court of Pakistan has manifestly settled the procedure for disposal of the state assets through transparent, unrestricted open public auction. Against the above dictum [2015 SCM R 1449], the so-called allottees/subsequent purchasers or encroachers/ illegal occupants filed four Review Applications [Nos. C.R.P. No.10/2015 in C.P No.1700/2011, C.M.A.No.5968/2015 in C.R.P.No.10/2015. C.R.P.No.11/2015 in C.P. No.1701/2011 & C.M.A.No.5969/ 2015 in C.R.P.11/2015] which have been decided by the Hon'ble Apex Court on 30.09.2020 by upholding the principles already laid down in the aforementioned case and granted only first right of refusal to the illegal occupants or encroachers after holding auction of the said land. The operative part of the order dated 30.09.2020 is as under:- "At the very outset, learned counsel for the review petitioner states that these review petitions be disposed of if the land, subject matter of the controversy is put to auction under the relevant laws.
According to him, since the petitioner has been conferred land, which has been annulled by this Court, and if at all the same is put to auction under the relevant law, the petitioner be given firs right of refusal to the highest bid. Such offer is not opposed by the learned Additional Advocate General as also the learned counsel for the respondent. It is expected that the auction will be carried out in a most transparent manner with due publicity preferably within a period of six months. Accordingly, both the review petitions are disposed of in the above terms. As a natural corollary, C.M.As also stand disposed of."
The above quoted verdicts of the Hon'ble August Court clearly set down the hallmark principle for disposal of evacuee land through unrestricted open auction and any deviation whereof shall be tantamount to the non-compliance of law which renders the very order of the authority as illegal and void in nature. In addition to the above the Hon'ble Supreme Court of Pakistan in its decision dated 02.01.2015 rendered 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, has conclusively set down a sacrosanct principle for disposal of public assets that the evacuee property which is also a public asset can only be disposed of through unrestricted and transparent 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)
7. The appellants are admittedly illegal occupants over the evacuee land and enjoying the usufructs of the said land without paying any penny to the state and they have approached this Court with sullied hands, as such, they are not considered entitled for grant of any discretionary relief in constitutional jurisdiction of this Court. With regard to the sale of evacuee land to the illegal occupant, the Hon'ble Supreme Court of Pakistan vide order dated 25.03.2016 passed 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 denied protection to the possession of usurpers of state property and held as under:- "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."
8. The land in question is admittedly a public property and the Courts of law are custodian of the public properties, public interest and while dealing with matters related to such properties and interests, it is the duty of the courts to be very careful and cautious and assure itself to the extent of certainty that no foul/mischief is being played with the state assets. An extraordinary obligation is placed upon the constitutional courts to keep abreast itself with law and facts of the case and when certain material facts unearthed before it then the matter should be decided as per law even without being influenced by respective pleadings of the parties. In this regard, reliance is placed on a judgment cited as Provincial Government through Collector, Kohat and another Versus Shabbir Hussain (PLD 2005 SC 337), wherein the Hon'ble Apex Court of the country has held as under:-
12. Likewise, the learned Presiding Officers are also required to exercise caution when they are dealing with matters relating to public property and public interest of which the Courts of law are the final custodians. It is true that we have never leaned in favour of giving of preferential treatment to the Government departments or agencies but then we are equally obliged, while granting relief, to ensure that public interest is not permitted to be jeopardized and public property is not allowed to be squandered through mere collusion of some representative of a Government agency".
(emphasis supplied)
9. Moreover in the plethora of the hallmark dicta of the Hon'ble Apex Court of the country it is successively held that the state assets must be disposed of in fair transparent, universally recognized modus operandi of public auction, thus all the organs of the state are placed under mandatory obligation to comply with the orders of the Hon'ble Supreme Court of Pakistan as enshrined in Article 189 of the Constitution of the Islamic Republic of Pakistan and any deviation whereof that would indeed be nullity void ab initio in the eyes of law. Reliance in this regard is placed on the cases cited as Muhammad Sharif Vs. Settlement Commissioner and others (2007 SCMR 707), Iffat Jabeen Vs. District Education Officer (M.E.E), Lahore and another (2011 SCMR 437) and Dr. Iqrar Ahmad Khan Vs. Dr. Muhammad Ashraf and others (2021 SCMR 1509).
As such it is crystal clear from the aforementioned discussion that the Notified Officer/Chief Settlement Commissioner has no jurisdiction to sell the evacuee land through private treaty and the only mode for disposal of the state assets is to put the same to unrestricted transparent open public auction but the Chief Settlement Commissioner while deciding the application in violation of above consistent law allowed the appellant to purchase the land on market price which in itself is a kind of private treaty, thus these findings being contrary to law are liable to be set aside.
10. The appellants do not fulfill the criteria prescribed in Act ibid as well as the Scheme for grant of offer to them for sale of land in question, but the findings of the Chief Settlement Commissioner recorded in the impugned order dated 24.08.2009 and the finding contained in paragraph No.8 of the judgment dated 05.06.2014, passed by the learned Single Judge in Writ Petition No.23-R/2010, whereby the appellants/illegal occupants were allowed to purchase the land in question at market price, being against the law are hereby set aside. The Chief Settlement Commissioner, Punjab is directed to retrieve the possession of the land in question from the appellants/illegal occupants, impose penal rent/tawan upon them since the date of their illegal possession till retrieval of the same and dispose of the land in question through unrestricted open public auction.
11. With the aforesaid modification in the impugned orders, this Intra Court Appeal is hereby dismissed. Office is directed to transmit a copy of this judgment to the Chief Settlement Commissioner, Punjab for compliance within a period of three months.