Ch. Muhammad Iqbal, J:- Through this constitutional petition, the petitioners/successors of Noor Muhammad have challenged the validity of order dated 12.12.2023 passed by the Full Board-II, Board of Revenue, Punjab whereby the request of the petitioners to purchase the evacuee land was turned down.
2. Brief facts of the case as contended by learned counsel for the petitioners are that one Abdul Sattar s/o Shah Nawaz procured allotment of evacuee land showing himself as displaced person in different villages [i. Kichian Lilera, 60 Kanal, ii. Ghari Mambran, 907 Kanal 17 Marla, iii. Ghari Wahab, 173 Kanal 18 Marla iv. Shori Manika 115 Kanal 18 Marla, total land measuring 1256 Kanal 17 Marla]. After procuring the above alleged allotment, he sold the land through different transactions. A complaint was lodged by Muhammad Yousaf before Inspection Team of Settlement Department regarding the alleged illegal allotment and then proceedings under Section 10 & 11 of the Displaced Persons (Land Settlement) Act, 1958 were initiated by the Notified Officer and as final result of said proceedings allotment of evacuee land in favour of Abdul Sattar was cancelled and land was resumed vide order 16.10.1975. The said cancellation order was challenged through Writ Petition No.572 R/1976 which was dismissed in default vide order dated 01.10.1976. The application for its restoration was also dismissed.
Muhammad Yousaf being informer got allotted the resumed land on the basis of the order of the Naib Tehsildar as well as Inspection Team. The vendees from Abdul Sattar challenged the allotment of Muhammad Yousaf through Writ Petition No.1089/1978 which was disposed of vide order dated 20.06.1981 and the allotment of Muhammad Yousaf was declared as without lawful authority. The said order was challenged before the Hon'ble Supreme Court of Pakistan through CPLA No.921/1981 which was converted into Civil Appeal No.492/1988 and same was dismissed vide judgment dated 27.05.1991.
3. The petitioners being successor of Noor Muhammad vendee from Abdul Sattar filed an application for purchase of the evacuee land which was accepted by the then Chief Settlement Commissioner vide order dated 11.05.2009 allowing them to purchase the land at the rate of current market price plus 50% penalty. The petitioners assailed the said order through Writ Petition No.122-R/2009 which was accepted on 15.07.2009 by this Court who remanded the matter to the Chief Settlement Commissioner for fresh decision. In post remand proceedings the Chief Settlement Commissioner vide order dated 22.12.2015 permitted the petitioners to purchase land under their possession at the current market price prevailing in the year 2016. Against the said order, the petitioners again filed Writ Petition No.51 R/2016 which was accepted by this Court on 19.06.2017 and case was again remanded to the Notified Officer for decision afresh.
Now in the post-remand proceedings, the Full Board, Board of Revenue (hereinafter referred to as "Full Board"), rejected the application of the petitioners to purchase the land in question and passed direction to dispose of the land as per prevalent policy on the subject. Hence, this petition.
4. Arguments heard. Record perused.
5. This Court vide order dated 20.06.1981 passed in Writ Petition No.1089/1978 declared the alleged allotment of Muhammad Yousaf as illegal and without lawful authority and Noor Muhammad, the predecessor-in-interest of the petitioners, was allowed to purchase the evacuee land, in case he applies for the said purpose. The Hon'ble Supreme Court of Pakistan upheld the order dated 20.06.1981 in Civil Appeal No.492/1988 vide judgment dated 27.05.1991. Noor Muhammad never filed any application for the purchase of the evacuee land within stipulated period i.e. till 30.06.2003. Any such application was neither presented by the petitioners before the Full Board nor even before this Court. Moreover, the petitioners claimed that their predecessor/Noor Muhammad purchased land from Abdul Sattar but to prove their assertion, no document was produced whereas the allotment in favour of Abdul Sattar was declared bogus vide order dated 16.10.1975 passed by the Additional Settlement Commissioner and the land was resumed. The said order was upheld by this Court vide order dated 01.10.1976 passed in Writ Petition No.572-R/1976. The said orders were not further assailed as such as such the same have attained the status of finality and have become past and closed transaction. Reliance is placed on a case titled as Pakistan International Airlines Corporation Vs. Aziz ur Rehman Chaudhary and another (2016 SCMR 14).
6. As regard the claim of the petitioners who asserted to be bona fide subsequent purchasers of the property in question and have protection of Section 41 of Transfer of Property Act, 1882, suffice it to say that admittedly, the petitioners are subsequent purchasers of the evacuee property from Abdul Sattar whose allotment was cancelled and his title was completely extinguished and subsequent vendees have to soar and sink with their vendors and they are debarred to claim any better title. Reliance can be placed on the cases titled as Muhammad Yamin and others Vs. Settlement Commissioner and others (1976 SCMR 489), Province of the Punjab through Collector, Sheikhupura & Others Vs. Syed Ghazanfar Ali Shah & Others (2017 SCMR 172) and Abdul Hamid Vs. M.B.R. and others (1994 CLC 1160).
7. Further, the superior Courts of this country have settled this issue that the evacuee property, either urban or agricultural, can only be disposed of by the authorities through unrestricted open public auction. A learned Bench of this Court has resolved this issue in a judgment cited as Malik Allah Ditta and others Vs. Member, Board of Revenue/(Judicial-V)/ Chief Settlement Commissioner / Notified Officer, Punjab, Lahore and another (2022 CLC 414 DB) wherein it is held that the Notified Officer / Chief Settlement Commissioner has no jurisdiction to alienate the evacuee land through any private treaty and the only mode for disposal of the state assets is to put the same to unrestricted transparent open public auction. The relevant portion of the judgment (supra) is as under:- "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 SCMR 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 first 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......
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."
8. Further, the petitioners filed application on 16.06.2014 for the purchase of the evacuee land to the Chief Settlement Commissioner/Notified Officer, Punjab, whereas the Evacuee Property and Displaced Persons Laws (Repeal) (Amendment) Act, 2022 (XXI of 2022) has been promulgated and Section 3 whereof deals with the transfer of the evacuee properties. For ready reference, Section 3 of the Act ibid is reproduced as under: "3. Transfer of property.- All properties, both urban and 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 cancellation of any fraudulent allotment shall stand transferred to the Government for utilization for public purposes."
(emphasis supplied)
After the aforesaid enactment, all the evacuee properties stood transferred to the government for its utilization for public purposes and same went out from the jurisdiction of the Notified Officer, Chief Settlement Commissioner or the Full Board to decide qua its permanent disposal in any manner whatsoever, rather it is only the Government which has also a limited jurisdiction to utilize such land only for public purpose. The term 'Public Purpose' has been defined in Black's Law Dictionary (5th Edition) as under:- "A public purpose or public business has for its objective the promotion of the public health, safety, morals, general welfare, security, prosperity and contentment of all the inhabitants or residents within a given political division, as, for example, a State, the sovereign powers of which are exercised to promote such public purpose or public business."
9. Learned counsel for the petitioners has not been able to point out any illegality or material irregularity in the impugned order and has also not identified any jurisdictional defect calling for interference by this Court.
10. Resultantly, this writ petition being devoid of any merits is hereby dismissed.