MUHAMMAD SHAN GUL, J. Through this judgment the titled constitutional petition is sought to be decided.
FACTS:
2. Petitioner No.1 and her son, petitioner No.2 are statedly co-owners of a house built on Plot No. 596-C, measuring 10-Marla & 05-Sq-Ft, situated at Faisal Town Lahore since 15.11.2014. The said plot was originally exempted by respondent No.1/Lahore Development Authority ("Lahore Development Authority") in favour of one Mst. Hussan Parwar , daughter of Sharif ud Din, on 04.01.1990 against land acquired by Lahore Development Authority in Mouza Icchra. After the said exemption this plot was held by various persons including the husband of petitioner No.1 (father of petitioner No.2) and his parents and was lastly transferred to the petitioners.
3. On 24.05.2021, the petitioners applied to respondent No.1/Lahore Development Authority seeking issuance of a Clearance Certificate/NOC for the purpose of sale of the said plot., which was issued to the petitioners by respondent No.1/Lahore Development Authority on 09.07.2021. The petitioners entered into an Agreement to Sell dated 08.02.2022 regarding the said plot and on 07.03.2022 requested respondent No.1/Lahore Development Authority for the transfer to be ef fectuated in favour of the vendee of the said plot.
4. The petitioners contend that the respondents lingered on the matter and did not allow the transfer of the said Plot to the vendee and informed the petitioners that only upon receipt of verification from the concerned revenue officials, the transfer could come to pass.
5. Annexure-I with the petition is a report formulated by the revenue department upon the request of Director Land Acquisition, Lahore Development Authority which was purportedly provided to the husband of the petitioner . The said report traces the history of the land, against acquisition of which, five(5) plots including the said plot of the petitioners, were exempted in favour of Mst. Hussan Parwar and concludes that her ownership in the land in Mouza Icchra could not be verified. In other words, she was never recognized as the owner of the land, against the acquisition of which, the said Plot was exempted in her favour .
6. Mr. Suhail Iftikhar Butt (husband of petitioner No.1 and father of petitioner No.2) approached the learned Ombudsman, Punjab seeking issuance of a direction to Director Housing/respondent No.4 to effectuate the transfer of the said plot in favour of the vendee. Respondent No.4 on 21.07.2022 filed a report (impugned letter) before the learned Ombudsman stating his inability to proceed any further till a formal verification report is received from the revenue department. However , respondent No.4, upon analysis of the afore-stated report of revenue (procured by Mr. Suhail Iftikhar Butt and submitted before the learned Ombudsman), stated that in case of non-verification of the land of Mst. Hussan Parwar , exemption granted in her favour along with all subse quent transfers shall be liable to be withdrawn and hence, the petitioners must approach the competent forum for ascertainment of title of the original exemptee (Mst. Hussan Parwar).
7. Now the petitioners seek to invoke the constitutional jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 ("the Constitution") and pray for the following reliefs:- i. Declaration that letter dated 21.07.2022 of respondent No.4 is contrary to law and must be recalled/cancelled. ii. Declaration that the petitioners are lawful owners of the said Plot competent to transfer the same & direction to respondents to transfer the said Plot in favour of the vendee.
8. Learned AAG as also Barrister Bushra Saqib who is present in the Court in connection with some other case were asked to assist this Court. The assistance rendered by both of them is appreciated. Especially Barrister Bushra has provided valuable assistance and has provided precedent cases which are quite relevant.
QUASHING OF LETTER DA TED 21.07.2022:
9. Impugned letter dated 21.07.2022 neither cancels the exemption granted in favour of predecessor in interest of the petitioners/Mst. Hussan Parwar nor the transfer of the said plot in favour of the petitioners. It merely records the inability of the respondents to allow the transfer of the said Plot to a subsequent vendee of the petitioners till the verification of land (against which the said Plot was exempted in favour of Mst. Hussan Parwar). Even the report of Revenue Department annexed with the petition has not been received by Lahore Development Authority as yet.
Hence, the application seeking transfer of the said Plot moved by the petitioners still seem to be pending with Lahore Development Authority and the said letter dated 21.07.2022 merely opines upon the contents of the report of Revenue Department procured and produced by the petitioners themselves. No decision has been taken adversely affecting the rights of the petitioners as yet and hence, there appears to be no denial of any statutory right of the petitioners which could possibly be made basis for the issuance of a writ of certiorari by this Court.
10. The claim of the petitioners is that since they are bonafide purchasers of the said Plot, any discrepancy in the original exemption must not have any impact upon their entitlement to the said plot.
11. In addition to there being no adverse order against the petitioners, a common occurrence of such incidents prompted the legislation of Section 32 vide The Lahore Development Authorit y (Amendment) Act, 2013, the relevant portions of which are reproduced: "32. Commission on issues of bona fide purchasers, illegal schemes and illegal constructions.-- (1) After the commencement of this Act, the Government shall constitute a Com mission, as a one-time dispensation, for considering and deciding matters and disputes pertaining to bona fide purchase for value owing to irregular or fraudulent transaction in respect of property , establishment of scheme in an illegal manner or illegally constructed structures.
(4) The Authority or any officer so authorized by the Authority , on its own motion or on the application of any person, may refer any matter to the Commission for consideration, resolution and decision if a prima facie case is made out.
(5) The Commission shall consider and make appropriate recommendations on matters pertaining to--
(a) bona fide purchase for value owing to irregular or fraudulent transaction in respect of property , the extent of legality or illegality of the transaction, apportionment of responsibility in irregular or fraudulent transaction and translation of this responsibility into monetary terms and recommendation of such conditions, fines, rates or fix price, retrieval of property and demolition as deemed appropriate according to the nature of each case;
(7) Any person aggrieved by the recommendations of the Commission may, within sixty days from the date of communication of the recommendations, prefer an appeal to Lahore High Court.
(11) The Government may , by notification, make rules for giving effect to the provisions of this section."
12. Lahore Development Authority Commission Rules, 2014 ("Rules, 2014") were framed under Section 32(7); the present issue being regulated under Rule-7: "7(1). The Authority or any officer so authorized by the Authority , on its own motio n or on the application of any person who claims to be a bonafide purchaser and his allotment or transfer of interest in his favour has either been cancelled or called in question by the Authority ....., may refer the matter to the Commission for consideration and recommendation if a prima facie case is made out."
(8) The Commission shall proceed with the hearing of the application preferably on day to day basis and shall decide the application within four months of its receipt."
13. Hence, in case the respondents, after receipt of the report of revenue department consider that original exemption of said plot was an outcome of a fraudulent transaction and consequently adversely impacting the rights of the petitioners qua the said plot, the Rules, 2014 read with Section 32 quoted above create a specific forum for the adjudication of the matter . In fact the petitioners do not have to wait till any cancellation is ordered and are authorized to approach respondent No.1/Lahore Development Authority for a referral of the matter to the Commission. The orders passed by the Commission can further be assailed through an appeal to the High Court.
14. It seems that the petitioners, without even waiting for the opinion of respondent No.1 and prior to receipt of the revenue report by Lahore Development Authority has rushed to this Court. There could be an apprehension of the Petitioners that Respondent No.1 will take adverse action against the petitioners! This apprehension, however , is not only misplaced but also pre-mature. It is only the Commission established under Section 32 which can decide the fate of the transaction and can either , after fixing the apportionment of liability on the petitioners, if any, order the payment of fine or retrieval of property . Respondent No.1 has no authority to do any such act.
15. This Court in "Dhani Khan v. M.Z. Khan (Member , Board of Revenue, West Pakistan) and another" (PLD 1963 Lahore 583) settled the rule that any person seeking the issuance of a writ of certiorari must have a vested right and such right must be disturbed due to an act of a public functionary . Before such disturbance actually takes place, which can only be said to have taken place after the Commission decides the entitlement of the Petitioners, the contentions of the petitioners are merely apprehensions and hence, are hit by the doctrine of ripeness. As James L.J. stated in ex-parte Sidebotham (1880) 14 Ch.D. 458 "....a person aggrieved" must be a man who has suffered legal grievance, a man against whom a decision has been pronounced which has wrongfully deprived him of something or wrongfully refused him something, or wrongfully affected his title to something"
16. The Hon'ble Supreme Court and this Court have repeatedly emphasized upon the requirement of there being the presence of an actual decision jeopardizing the right of a litigant before his constitutional petition could be entertained. Such decision, passed by a competent forum; in this case the Commission, would identify what right of a litigant is abridged and on what basis.
17. In "National Steel Rolling Mills and others v. Province of West Pakistan" (1968 SCMR 317(2), it has been held as follows: "There is nothing in this letter to show that a decision of any kind had been made. The contention of the petitioners, therefore, that the Government had decided to enforce the first notification for the period between 15-3- 1963 to 19-11-1966 is not supported by any order to that effect on the record. The challenge in that behalf, therefore, is premature and possibly an attempt to anticipate any action that the workers may take to enforce their claim for arrears on the basis of the first notification. The contention is that the employer is liable under section 9 A of the Ordinance to be prosecuted for payment at a rate lower than the rate declared under this Ordinance to be the minimum rate of wages and in such a case can also be made liable to punishment with imprisonment for a term which may extend to six months or with fine extending to Rs. 500 or both and, therefore, there is at least, it is urged, a threat of such penal action which gives the petitioners a cause of action to invoke the constitutional jurisdiction of the High Court. We are unable to agree. If and when the prosecution is started the petitioners will be entitled to raise it by way of a defence in that prosecution that the notification itself is illegal or ultra vires or unenforceable. ......The petitioners have not adduced any evidence to show that any complaint of this kind has ever been made. The High Court was, therefore, in our opinion, right in rejecting this contention, and so far as this Court is concerned it need only be said that at this stage this is an academic question."
18. In "Mian Muhammad Shahbaz Sharif v. Federation of Pakistan through Secretary , Ministry of Interior , Government of Pakistan, Islamabad and others" ( PLD 2004 Supreme Court 583 ), it has been held as follows: "The Court would not entertain a petition, which was based on a premature act."
"The Court can be moved only when a violation of some legal or Constitutional right actually takes place."
19. In "Liaqat Ali v. City Nazim and others" ( 2003 MLD 1635 ), it has been held as follows: "The brief facts out of which the present writ petition arises are that according to the petitioner his land is not situated in the notified area of Municipal limits of Faisalabad. Therefore, the respondent has no authority to take action against the petitioner . .......
2. .......The petitioner has filed this writ petition without attaching any document to show that respondent's employees have initiated proceedings against the petitioner . It is settled principle of law that writ petition is not maintainable against apprehensions as per principle laid down by the Honourable Supreme Court in National Re- rolling Steel Mills case (1968 SCMR 317 (2)."
20. This Court in "Mughal-e-Azam Banquet Complex through Managing Director v. Federation of Pakistan through Secretary and 4 others" (2011 PTD 2260 ) has held that an issue is not ripe for adjudication by the Court unless the administrative and executive hierarchy has completed their task and passed an order reflecting upon the petitioners. The requirement being a vital one in the light of the condition of a litigant actually being an "aggrieved party" before being entitled to invoke constitutional jurisdiction of this Court.
21. In "Mughal-e-Azam Banquet Complex through Managing Director v. Federation of Pakistan through Secretary and 4 others" ( 2011 PTD 2260 ), it has been held as follows: "5. The other aspect of the matter is that mere issuance of Show-Cause Notice does not mean that the case will invariably be decided against the petitioner and there is always a possibility that the same may be decided in favour of the petitioner . Laying challenge to a show cause notice is, therefore, no different that filing a petition on the basis of an apprehension or a speculation. Such a petition is premature and not ripe for adjudication. "Just as a case can be brought too late, ...it can be brought too early , and not yet be ripe for adjudication... until the controversy has become concrete and focused, it is difficult for the Court to evaluate the practical merits of the position of each party ." The basic rationale behind the "Ripeness" doctrine is "to prevent the courts through avoidance of premature adjudication, from entangling themselves, in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties." "Ripe ness" requires that an issue be sufficiently formed and felt to be a justifiable controversy ...As courts insist on a concrete context, that context enables them to better see the problems that they are supposed to redress. As courts insist on completed agency action, that insistence may eliminate the waste of courts time in deciding disputes that might be moot as an agency runs its course."
22. In "Mughal-e-Azam Banquet Complex through Managing Director v. Federation of Pakistan through Secretary and 4 others" ( 2011 PTD 2260 ), it has been held as follows: "7. The requirement of ripeness and that of exhaustion of administrative remedies are both concerned with the timing of judicial review of an administrative action. However , the two requirements are separate and distinct.
According to Kenneth Culp Davis, "the ripeness focus is upon the nature of the judicial process - upon the types of functions that the courts should perform. The exhaustion focus is upon the relatively narrow question whether a party should be required to pursue an administrative remedy before going to court."
8. "Ripeness is a doctrine which courts use to enforce to impose prudential limitat ions upon their jurisdiction". It is founded on the principle that judicial machinery should be conserved. It "reflec ts concerns that courts involve themselves only in problems that are real and present or imminent" and should not exhaust themselves in deciding theoretical or abstract questions that have no impact on the parties at least for the time being. This doctrine postulates that the "lawsuit must be well developed and specific and appro priate for judicial resolution.
Courts may not decide cases that involve uncertain and contingent future events that may not occur as anticipated, or indeed may not occur at all.
23. In Regine (John M'Evoy) Vs. Dublin Corporation (1879) 2 L.R.Ir . 371 , it has been held as follows: "It is established that a writ of certiorari does not lie to remove an order merely ministerial, such as a warrant, but it lies to remove and adjudicate upon the validity of acts judic ial. In this connection, the term "judicial" does not necessarily mean act of judge or legal tribunal sitting for determination of matter of law, but for the purpose of this question a judicial act seems to be an act done by competent authority under consideration of facts and circumstances, and imposing liability or affecting rights of others, and if there be a body empowered by law to inquire into facts, make estimates to impose a rate on a district it would seem to me that acts of such body involving such consequences would be judicial acts..."
(May C.J)
24. Additionally , opining and deciding upon the Impugned Letter will require determination of vital disputed factual questions through evaluation of evidence i.e. whether Mst. Hussan Parwar owned the land against which exemption was granted to her?, whether the petitioners were bonafide purchasers and purchased the said plot against valid consideration being unaware of any fraudulent transaction and whether the petitioners could be deprived of their rights in the said plots on the basis of clauses contained in the exemption or the allotment letter?
Such exercise, being beyond the ambit of constitutional jurisdiction cannot be undertaken by this Court.
Furthermore, in the presence of an alternative statutory remedy this Court cannot encroach upon the jurisdiction of the Commission.
25. An action brought prematurely prior to the determination of alleged rights of the petitioners by the competent statutory forum, presence of an alternative statutory remedy and inability of this Court to decide vital factual questions involved; all divest this Court of the jurisdiction and judicial power to adjudicate upon the issues raised by the petitioners.
26. The petitioners have relied upon a judgment of this Court "Ch. Zafar Hussain and 5 others v. Border Area Committee through Chairman and 6 others" (2012 MLD 1538 ) to assert that this Court can annul cancellation of allotment in favour of the subsequent purchaser of a property irrespective of any defect in title of the original allottee. The facts of this judgment are distinguishable inasmuch as, the allotment to the petitioners or the original exemptee has yet not been cancelled and a mere opinion is formed by respondent No.1, who, anyway , is not authorized to cancel any such allotment. Furthermore, the judgment, though settles that the terms of original allotment (right of cancellation) shall not be applicable to the subsequent purchasers, contrarily , in the present case, the allotment to the petitioners has been made contingent to the same terms and conditions as were offered to the original allottee.
DECLARA TION OF PETITIONERS' TITLE:
27. In "Anjuman Fruit Arhtian and others v. Deputy Commissioner , Faisalabad and others" (2011 SCMR 279), the petitioners were allotted land by the Settlement Department and transfer deeds were also executed in their favour . Later , attestation of mutations in their favour was denied by the Department on allegations of fraud and forgery . A Writ Petition challenging the denial was dismissed and the Hon'ble Supreme Court also dismissed the appeal as follows: "5. ............Let us mention here at the out-set that there are certain controversial questions which cannot be resolved in exercise of constitutional jurisdiction as a thorough probe and investigation would be needed to set the controversy at naught specially when a categoric allegation of fraud and forgery has been levelled by the Additional Advocate General. It is well settled by now that the superior Courts should not involve themselves into investigations of disputed question of fact which necessitate taking of evidence: This can more appropriately be done in the ordinary civil procedure for litigation by a suit. This extraordinary jurisdiction is intended primarily , for providing an expeditious remedy in a case where the illegality of the impugned action of an executive or other authority can be established without any elaborate enquiry into complicated or disputed facts. Controverted questions of fact, adjudication on which is possible only after obtaining all types of evidence in power and possession of parties can be determined only by courts having plenary jurisdiction in matter and on such ground constitutional petition was incompetent."
6. It is worth mentioning that it is mandatory and obligatory for a party invoking the Constitutional jurisdiction to establish a clear legal right which should be beyond any doubt and controversy . In the light of alleged forgery and fraud as pointed out by learned Additional Advocate General, we are of the considered view that legal right and entitlement of the petitioners are controversial. It hardly needs any elaboration that disputed question of fact cannot be decided in constitutional jurisdiction.
7. There is no cavil to the proposition that "Constitutional jurisdiction of High Court, would be declined where the petitioner has not exhausted all remedies available to him before filing of constitutional petition". Ejaz Hussain v. Messrs Hotel Jabee s Ltd. (1990 PLC 643), Allah Bakhsh and another v.
Muhammad Ismail and others (1987 SCMR 810), Ghulam Rasool v. Returning Officer PLD 1985 Kar: 315, Golden Industries Ltd. v. Province of Sindh (PLD 1983 Kar. 76), Lipton (Pakistan) Ltd. Karachi v. Govt. of Sindh (PLD 1977 Kar. 714). The petitioners may approach the forum concerned for redressal of their grievances subject to all legal exceptions."
28. In "The Province of East Pakistan v. Kshiti Dhar Roy and others" (PLD 1964 Supreme Court 636), it has been held as follows: "The contention of the Government that the decision of this question was not appropriate in a proceeding for a writ was, therefore, not without force. The principle is now well settled that a proceeding in the writ jurisdiction is more inthe nature of a summary proceeding in which examination of disputed questions of fact of a complicated nature is not as a genera rule undertaken nor investigations of title to property made. It provides a means of obtaining a speedy decision in a case where a clear disregard of a statutory obligation or duty has resulted in the infringement or denial of a legal right about the existence of which there is not any reasonable dispute or controversy ."
29. In "Mst. Zuhra Begum v . Syed Sajjad Hussain and 7 others" ( 1971 SCMR 697 ), it has been held as follows: "... It is contended by the learned counsel for the petitioner that this deed of association was procured by fraud and misrepresentation, which was manifest from certain documentary evidence, which the petitioner had adduced in the High Court but which was not taken note of for the reason that the same had not been produced before the Settlement authorities. The High Court, was not the proper forum for investigating into the genuineness of tile aforesaid deed of association, and had rightly refused to land itself into that inquiry . If the petitioner considers that the deed of association in favour of Sajad Hussain was the result of fraud and misrepresentation, she may , if so advised, approach the Settlement authorities to examine that allegation."
30. In "Ataur Rehman Khan v . Dost Muhammad and others" ( 1986 SCMR 598 ), it has been held as follows: "The controversy in hand and as formulated in the leave granting order involves questions of facts and law and so also the avoidance of declaratory decree which cannot properly be adjudicated upon in writ jurisdiction because of its scope and the nature of the reliefs available, but can only be decided by a Court of general jurisdiction."
31. In "Anjuman-e-Ahmadiya, Sargodha v. (1) The Deputy Commissioner , Sargodha and (2) The Government of West Pakistan, through the Secretary Colonies, Board of Revenue, West Pakistan, Lahore"
(PLD 1966 Supreme Court 639 ), it has been held as follows: "The policy underlying the introduction of this form of extraordinary remedy E is, as observed by Lord Mansfield in Rex v. Barker ((1762) 3 Burr. 1265=97 R W) "to prevent disorder from a failure of justice and defect of police" in an inexpensive, expeditious and effective manner "where the law has established no specific remedy and where in justice and good Government there ought to be one". In a case where this remedy is in other respects warranted it is rarely that the Courts in England have considered an action in law to be such an adequate alternative remedy as to refuse the writ unless complicated questions of fact have to be determined, or a question of title to land is involved or the remedy sought is, in ef fect, for the recovery of damages.
32. A clear and unequivocal thread in the aforesaid judgments is that questions regarding title of a person in a property fall outside the ambit of constitutional jurisdiction, hence, cannot be decided in the exercise of powers under Article 199 of the Constitution. In addition to the widely accepted and repeatedly endorsed principle that evaluation of evidence necessary to decide such questions cannot be undertaken by the constitutional courts; the invocation of such jurisdiction can only be made when there is no stigma or defect alleged on the title of the litigant.
Such defect can only be adjudicated by the courts of plenary jurisdiction and existence of or even undetermined allegation of such facts precludes the petitioners from seeking issuance of a writ. The contentions of the petitioners themselves point towards an alleged blot on their title and when the title itself is undetermined, this Court cannot proceed on an assumption of existence of any vested right, sufficient to enable this Court to exercise its jurisdiction under Article 199.
33. The petitioners have already approached the office of the Ombudsman, Punjab for seeking a direction to Lahore Development Authority to allow the transfer of the said plot. Any such direc tion will be dependent upon the ascertainment of title of the petitioners by the Commission, hence the question is not required to be adjudicated by this Court at this stage.
ENFORCEMENT OF PUBLIC RIGHTS VS. PRIV ATE RIGHTS:
34. Although respondent No.1 is a state organ performing functions in connection with the affairs of the Province; such status of Lahore Development Authority is not the only decisive factor while deciding if the relief sought can be claimed through an action brought under Article 199 of the Constitution. The issue was first considered in England in Davy v . Spelthorne B.C (1983) 3 All ER 278; "This issue relates with circumstances in which a person with a cause of action against public authority , which is concerned with the performance of its public duties, is entitled to proceed against the authority by way of any ordinary action, as distinct from an application for judicial review ...... Those provisions do not expressly provide that the procedure by application for judicial review shall be the exclusive procedure available by which the remedy of a declaration or injunction may be obtained for infringement of public law rights...."
The House of Lords in O'Reilly v Mackman [1983] UKHL 1 drew a distinction between the circumstances in which acts or omissions of public authorities could be assailed through ordinary action (civil remedies before the courts of plenary jurisdiction) or though judicial review .
"..... If what should emerge is that his complaint is not of an infringement of any of his rights that are entitled to protection in public law, but may be an infringement of his rights in private law and thus not a proper subject for judicial review .....
My Lords, I have described this as a general rule; for though it may normally be appropriate to apply it by the summary process of striking out the action, there may be exceptions, particularly where the invalidity of the decision arises as a collateral issue in a claim for infringement of a right of the plaintiff arising under private law, or where none of the parties objects to the adoption of the procedure by writ or originating summons......"
Again in Cocks v Thanet District Council (1983 ) 2 AC 286 Lord Denning held that the functions of a public authority can be divided into two parts; one part is its public law function and the other is a private law function. The distinction was clarified in Roy v. Kensington (1992) 1 All ER 705 where a medical practitioner 's right to remuneration from a state organ i.e National Health Services established and functioning under a statute was held to be enforceable through ordinary action (civil courts) in this case declaring that his right to remuneration as ".... A bundle of rights which could be regarded as his individual private law rights against a statutory committee, arising from the statue and regulations and including a very important private law right to be paid for the work that has been done"
35. The right of the petitioners to use and dispose of their property , contingent upon the existence of a valid title is a private law right, which once established shall give rise to the public law duty of Lahore Development Authority to not cause any hindrance in the exercise of this right. The petitioners have tried to cross the bridge before reaching it and seek issuance of a writ for the enforcement of a public law right without first establishing their private law right from a court of ordinary jurisdiction.
36. On account of what has been discussed this petition merits to be dismissed and is, therefore, dismissed.