Ch. Muhammad Iqbal, J. Through this writ petition, the petitioner has challenged the order dated 09.09.2010, passed by the Member (Colonies), Board of Revenue, Punjab, who while invoking the jurisdiction under Section 30(2) of Colonization of Government Land s (Punjab) Act, 1912, withdrew the sale deed/conveyance deed executed in favour of the petitioner , rescinded the same and resumed the land measuring 04 Kanal comprising Khasra No.3033 situated in Moza Shahpur Tehsil & District Lahore in favour of the State.
2. Brief facts of the case, as contained in this petition, are that the petitioner requested the Chief Minister , Punjab for the allotment of land in the vicinity of Lahore for the establishment of Art Acad emy. The Chief Minister , Punjab on 03.09.2004 accepted the request and land measuring 4 Kanals comprising Khasra No.3033 situated in Mouza Shahpur was allotted vide order dated 03.09.2004 against consideration of Rs.5.6 Million plus 10% surcharges. In compliance of the order passed by the Chief Minister , the assessed price of suit land was deposited by the petitioner whereafter a conveyance deed was executed in his favour in respect of the suit land on 29.06.2006. The Member (Colonies), Board of Revenue on 01.07.2010, sent a show-cause notice to the petitioner for appearance on 09.07.2010. The petitioner initially impugned the said notice through instant writ petition. As no restraining order was passed by this Court, therefore, the Member (Colonies), Board of Revenu e, after hearing the petitioner 's counsel, vide order dated 09.09.2010, cancelled the sale/conveyance deed, resumed the disputed land in favour of the State and directed the revenue authorities to refund the sale price deposited by the petitioner . Thereafter , the petitioner filed an application for amendment of the writ petition which was allowed and through amended writ petition, the petitioner challenged the order dated 09.09.2010, passed by the Member (Colonies), Board of Revenue.
3. Learned counsel for the petitioner submits that the Chief Minister , being Chief Executive of the Province, was competent to sale the State land through private treaty , as such, the impugned order passed by the Member (Colonies), Board of Revenue regarding cancellation of said sale, is not sustainable in the eyes of law; that under Section 30(2) of the Colonization of Government Lands (Punjab) Act, 1912, the Member , Board of Revenue has no authority to cancel the sale deed which was executed in compliance of the order of the Chief Minister in favour of the petitioner; that the impugned order is illegal and liable to be set aside.
4. Learned Law Of ficer has supported the impugned order .
5. I have heard the arguments of learned counsels for the parties and have gone through the record with their able assistance.
6. Admittedly the suit land is State land and the Chief Minister being Chief Executive of the Province, is only custodian of the state assets and he is not competent to sell the state land through private treaty . The Hon'ble Supreme Court of Pakistan in a case titled H.R.C. Nos.7581-P & 9059-P of 2009 (Applications of Haji Muhammad Saeed) entertained an application in suo motu proceedings and constituted a committee to inquire how many lands were given by the Colonies Department through private treaties. The case of the petitioner also came under consideration of the said committee and the committee observed as under: "The Committee is of the view that the sale was neither covered under the 2003 policy nor was it in accordance with law nor did the grant of land for purposes of the construction of an Art Academy by an individual constitute a charitable purpose. Even otherwise, the purchase failed to construct the said Art Academy within stipulated time. In the circumstances, the Committee recommends that the sale be cancelled."
On the foundation of the afore-noted recommendations/report of the committee dated 08.06.2010, the Hon'ble Supreme Court of Pakistan directed the Member (Colonies), Board of Revenue, Punjab to take action as warranted by law . For ready reference, order dated 08.06.2010 of the Hon'ble Apex Court 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 state assets have been alienated in contravention of law or policy on the subject and he (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 any such 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"
(emphasis supplied)
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.
Further no exception is available to the transaction of sale deed obtained through private treaty or misrepresentation or fraudulent means and the Member (Colony) Board of Revenue, 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."
(emphasis supplied)
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 case titled as "Province of Punjab through Collector , Sheikhupura VS Anjuman Talim-ul- Islam and others" (PLD 1987 SC 123). The Hon'ble Supreme Court of Pakistan in a case titled as "Syed Mazhar Hussain Shah through L.Rs VS Member , Board of Revenue, Punjab, Lahore and others" (2006 SCMR 959) has observed that the Deputy Commissioner/Collector , Faisalabad cancelled the allotment and resumed the same in favour of the state. The appeal was dismissed by the Commissioner and orders of the revenue hierarchy were upheld by the Board of Revenue. This Court also dismissed the writ petition and the Hon'ble Supreme Court of Pakistan refused the leave and upheld the findings of the revenue hierarchy as well as this Court for the cancellation of allotment of state land.
In another case titled as "Muhammad Manzoor VS Province of Punjab and others" (2011 CLC 494 Lahore) , this Court held that under Section 30(2), the Board of Revenue was competent to resume the land provided a reasonable opportunity of hearing to the alleged allottee, in the present case, the notice was issued by the Member (Colony), Board of Revenue to the petitioner in compliance of the order of the Hon'ble Supreme Court of Pakistan and after hearing, the land was resumed being allotted without jurisdiction and in violation of Section 23 of the Contract. Reliance can also be placed on the cases titled as Muhammad Manzoor through Legal Heirs & Others Vs Province of Punjab through District Officer Revenue, Vehari & Others (2011 CLC 1235 ) & Muhammad Yaseen & Others Vs District Co-Ordination Officer, Muzaf fargarh & 4 Others (2009 YLR 2365 ). In a case titled as Muhammad Sharif Vs Muhammad Sadiq & Another (1985 CLC 1645 ), this Court held that Board of Revenue empowers to resume land in respect of which proprietary rights had been acquired by fraud or misrepresentation or on account of ineligibility of a lessee. Order tainted with fraud or misrepresentation, as such, could not be allowed to attain finality .
7. Admittedly , land in question is state land owned by the Provincial Government, whereas the petitioner purchased the state property through private treaty . An alike matter for the purchase of the State land through private treaty , came under consideration of the Hon'ble Supreme Court of Pakistan in Haji Muhammad Saeed (supra) in which the Government of Punjab tendered a Gazette notification No.918-2013/933-CL(II) dated 26.11.2013 issued under Section 10(2) of the Colonization of Government Lands (Punjab) Act, 1912 wherein it is maintained that no provision is available in the scheme for disposal of State land through private treaty. In said policy notification it is unequivocally and clearly notified that State land should only be disposed of through unrestricted public auction.
Thereafter , Government of the Punjab vide policy dated 13.09.2019 reaffirmed the non-existence of any provision for the sale of State land through private treaty . Further the Hon'ble Supreme Court of Pakistan resolved the controversy for disposal of state land in case titled as Province of Punjab through Secretary revenue and others V ersus District Bar Association, Khanewal and others ( 2014 SCMR 161 1) as under:- "9. According to the aforesaid notification 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."
Admittedly , the land in question is a public property which cannot be doled upon any cherished person through private treaty to extend favoritism, nepotism and for undue enrichment of individuals at the resources of public, meant for ultimate welfare and bettermen t of public at large. 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 Punja b (PLD 2010 Lahore 510), the Lahore High Court has also reiterated the same view .
This Court in a judgment cited as Arshad Waheed Vs. Province of Punjab and others (PLD 2010 Lahore 510) has elaborately dealt with such like matter and has resolved the controversy as under: "49. The disposal or transfer of public property without public participation is abuse of public trust. Public Property sold or transferred behind closed doors by public functionaries to some select few undermines the venerated role of trusteeship. Good governance is fundamentally pillared on trust and confidence of the people in the government, public institutions and more importantly in the public functionaries at the helm of the affairs. If this public trust is hemorrhaged, the entire edifice of public administration loses its credibility , which weakens governments and discredits democracy .
50. In "Shri Sachidanand Pandey and another vs. The State of West Bengal and others", (AIR 1987 SC 1109) at p.1133, O. Chinnappa Reddy , J. after considering almost all the decisions on the subject summarized the propositions in the following terms:- "On a consideration of the relevant cases cited at the bar the following propositions may be taken as well-established: State owned or public owned property is not to be dealt with at the absolute discretion of the executive. Certain precepts and principles have to be observed. Public interest is the paramount consideration . One of the methods of securing the public interest, when it is considered necessary to dispose of a property , is to sell the property by public auction or by inviting tenders. Though that is the ordinary rule, it is not an invariable rule. There may be situations where there are compelling reasons necessitating departure from the rule but then the reasons for the departure must be rational and should not be suggestive of discrimination. Appearance of public justice is as important as doing justice. Nothing should be done which gives an appearance of bias, jobbery or nepotism".
51. In "Haji T.M. Hassan Rawther v. Kerala Financial Corporation" (AIR 1988 S.C. 157) Jagannatha Shetty speaking for the Supreme Court of India said:-- "The public property owned by the State or by any instrumentality of the State should be generally sold by public auction or by inviting tenders. This Court has been insisting upon that rule, not only to get the highest price for the property but also to ensure fairness in the activities of the State and public authoriti es. They should undoubtedly act fairly. Their actions should be legitimate . Their dealings should be above board. Their transactions should be without aversion or affection. Nothing should be suggestive of discrimination. Nothing should be done by them which gives an impression of bias, favoritism or nepotism. Ordinarily , these factors would be absent if the matter is brought to public auction or sale by tenders. That is why the Court repeatedly stated and reiterated that the State owned properties are required to be disposed of publicly . But that is not the only rule. As O.Chinnappa Reddy , J. observed, "that though that is the ordinary rule, it is not an invariable rule."
There may be situations necessitating departure from the rule, but then such instances must be justified by compulsions and not by compromise. It must be justified by compelling reasons and not by just convenience."
52. In "Fertilizer Corporation case", (AIR 1981 SC 344) at p.350 the Court speaking through Chandrachud, C.J., observed: "We want to make it clear that we do not doubt the bona fides of the authorities, but as far as possible, sales of public property , when the intention is to get the best price, ought to take place publicly . The vendors are not necessarily bound to accept the highest or any other offer, but the public at least gets the satisfaction that the Government has put all its cards on the table.
53. In "Ram & Shyam Company vs. State of Haryana" (1985 (3) SCC 267), it has been laid down: (vide p.277, para 12) ".......On the other hand, disposal of public property partakes the character of a trust in that in its disposal there should be nothing hanky panky and that it must be done at the best price so that larger revenue coming into the coffers of the State administration would serve public purpose viz. the welfare State may be able to expand its beneficent activities by the availability of larger funds. But where disposal is for augmentation of revenue and nothing else, the State is under an obliga tion to secure the best market price available in a market economy . An owner of private property need not auction it nor is he bound to dispose it of at a current market price. Factors such as personal attachment, or affinity , kinship, empathy , religious sentiment or limiting the choice to whom he may be willing to sell, may permit him to sell the property at a song and without demur . A welfare State as the owner of the public property has no such freedom while disposing of the public property ."
55. Disposal of Public Property without reaching out to the public is a breach of public trust and is therefore facially and ex-facie discriminatory . By giving preference to a select few amounts to treating equals unequally . This offends fundamental right of equality under article 25 of the Constitution."
(emphasis supplied)
The Hon'ble Supreme Court of Pakistan in a case titled Government of Punjab through Senior MBR etc. Vs. Irfan Hafeez, Civil Appeal No.214-L of 2014, vide order dated 18.12.2014, declared that the grant of the State land is not a bounty rather it has to be done within the parameters of the concerned scheme.
8. Admittedly all the affairs of the state are managed and run by the instrument of written constitution as well laws and functions/ business of each and every department is to be 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 its 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."
9. Chief Minister being Chief Executive of the Province is custodian and trustee of the assets of the Province and under the Colonization of the Govt. Lands Act, 1912, Chief Minister has no authority to allot the state land as in similar nature of the matter the Hon'ble Supreme Court of Pakistan have conclusively been settled this issue in Haji Saeed case bearing H.R.C. Nos.7581-P & 9059-P of 2009 (Applications of Haji Muhammad Saeed) wherein it was declared that Chief Minister has no authority/power to allot state land to any person held as under:- "The learned Advocate-General Punjab informed that draft policies in respect of allotments/leases of State lands have been approved by the Cabinet in its meeting held on 11-3-2013. He has referred page 2 of the C.M.A 1878 of 2013 which contains the draft notifications and stated that subject to its approval, the same shall be implemented. It has been pointed out to him that in respect of formulating the policies, the Court has noting to do with it as it is the job of the Government. However , as explained that the policy is in the public interest, the same may be notified accordingly ."
(2) The learned Advocate General, Punjab further stated that as far as the issue regarding unfettered powers of the Chief Minister to allot State lands is conc erned, no such powers are conferred upon him under the law, therefore, no such issue exists".
(emphasis supplied)
Presently neither any provision available in the revenue laws nor any policy exists in field for the sale of state land by the Chief Minister of the Province through private treaty . Further , in a case titled as Province of Punjab through Secretary Revenue & Others Versus District Bar Association, Khanewal & others (2014 SCMR 1611), the Hon'ble Apex Court held as under:- "13.Looking at the powers of the Chief Minister for allotment of public, here a reference to the case of Iqbal Hussain Vs. Province of Sindh through Secretary , Housing and Town Planning, Karachi and others (2008 SCMR. 105 ) will be useful wherein this Court has observed as under:- "3. We are in complete agreement with the view taken by the Division Bench of the High Court when it says that public functionaries including the Chief Minister can deal with the public property only under a prescribed procedure within the parameters of law under a duly sanctioned scheme and not at their whims. Even if such order was passed by the Chief Minister in favour of the petitioner , authorities concerned would not be bound to follow such illegal and void order of a superior authority . It would rather be in the exigencies of good order of administration and their duty to point out to the high-ups that they were acting in excess of their lawful authority and in violation of law and the constitutional mandate. They may be apprised of the legal consequences flowing from such acts. The compliance of any illegal and arbitrary order in neither binding on the subordinate forums nor valid in the eye of law.
Reference in this behalf may be made to decision of this Court in (i) Abdul Haq Indhar V. Province of Sindh (2000 SCMR 907 ) and (ii) T aj Muhammad V . Town Committee ( 1994 CLC 2214 )."
Reliance can also be placed on the case titled American International School System Vs. Mian Muhammad Ramzan & Others ( 2015 SCMR 1449 ), wherein the Hon'ble Supreme Court of Pakistan held as under:- "21. As discussed above, the petitioner-School was not eligible to be allotted evacuee land under the Scheme, 1977. There is nothing on record to subs tantiate the claim of the petitioner-School that it was allotted subject land in the public interest. The Chief Minister does not possess any plenary authority and or jurisdiction to allot any land as a matter of grace or favour at his whims and fancy , but in accordance with law. The public functionaries are the custodians of the public/State land, which could only be disposed of in accordance with law ."
(emphasis supplied)
10. As regard the argument of learned counsel for the petitioner that the profit/interest on the sale amount, deposited by the petitioner , which was ordered to be refunded by the Member , Board of Revenue, may be granted; as the impugned order was passed on 09.09.2010 but the petitioner himself avoided to receive back the said amount, as such, no ground is available for grant of any interest against the paid amount by the petitioner .
11. For what has been discussed above, instant writ petition being devoid of any force is hereby dismissed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.