1. SYED DEEDAR HUSSAIN SHAH, J.--- Case of the petitioners is that they are Haris of Agriculture Seed Farm situated in Deh Adilpur, Taluka and District Ghotki. This farm was established by the Government in the year 1960 so as to get better procurement and develop the seed for the purpose of agriculture. Since then petitioners are cultivating the land measuring about 96 acres.
2. According to petitioners, respondent No.1 issued notices in national press details of which are given in the notices Annexures "A" and "A/1" to the petition for auction of Government plots and lands.
3. Respondent No.8, Sindh Privatization Committee issued programmer for public auction of the plots owned by the Government of Sindh. In this lotice the agricultural land involved in this petition is also shown to be disposed of through public auction. According to petitioners after going through the newspaper they immediately approached the respondents and placed various representations mentioning that they are Haris of the Agriculture Seed Farm and intended to purchase the same.
4. According to the learned counsel for the petitioners at the time of auction they were not allowed to take part in the auction, that proper publicity about the auction was not held and nobody was allowed by the respondents to enter the building wherein the auction was held; that the auction was held in violation of the Land Grant Policy of the Government. In support of the petition, petitioners have submitted Harap certificate issued by Farm Manager which bears countersignature of Assistant Director and Deputy Director Agriculture Extension, Annexures "B/1" to "B/18". Their contention is that the petitioners had deliberately been deprived of their right to purchase the land which they were otherwise entitled to purchase.
5. 'Paradise comments on behalf of respondent No.8 and counter-affidavit on behalf of respondent No.10 were filed. According to paradise comments filed by respondent No.8, Government of Sindh as a policy matter decided to dispose of the Farmers Extension Service Centre situated at Adilpur Taluka Ghotki managed by Director-General, Agriculture Extension Sindh. In accordance with the directive of Prime Minister of Pakistan, the Government of Sindh constituted Privatization Committee which was required to privatize two sugar mills and also to dispose of all surplus assets with the approval of Chief Minister through open, transparent and fair auction. Respondent No.8 finalized the auction schedule and fixed the reserved price for different categories of land and plots as well as other terms and conditions of the auction including the condition that no Hari shall be affected by the purchasers except under the provisions of Sindh Tenancy Act and Rules made thereunder. In order to ensure transparency and attract buyers, auction schedule was published in international as well as national newspapers. A brochure was also published which contained all the details of the land which was to be auctioned and open auction was held daily at public place Baradari previously known as Polo Ground, Karachi from 1st November to 9th November, 1997 in which 127 persons participated in the auction. The auction was also given daily coverage by the national press from 2nd November to 1 1 th November. The proceedings of auction were also recorded through video and audio in order to avoid any controversy. According to parawise comments 96 acres of Agriculture Extension Service Centre were to be disposed of at the reserved price of Rs,20,000 per acre as fixed by the Government of Sindh and that tenancy of the petitioners in respect of the land is not affected by the auction. According to the comments the petitioners failed, to participate in the auction and in any case there is no violation of fundamental rights of the petitioners. According to respondent No.8, the allegations levelled by the petitioners in the petition are false, baseless and without substance. The purchaser or any of the respondents cannot eject the petitioners or stop them from cultivation of the land without due course of law.
6. Muhammad Bachal respondent No.10 filed counter-affidavit in which he has stated that he and his relations are Haris of Agriculture Seed Farm and they have agricultural land in Deh Adilpur and his family members are Haris of Deh Changlani. The Agriculture Department, Government of Sindh invited bids from public for open auction of different Government lands inclusive of Seed Farms Ghotki. the subject-matter of the petition. The auction was widely publicised in the national as well as international press and fair and transparent public auction was held from 1st November to 9th November, 1997 in which he participated. According to respondent No.10 petitioners were present in auction but they did not participate nor did they object to the auction and that there is no bar in law to dispose of agricultural land in the manner it has been auctioned. Petitioners have no rights which can be equated with tenancy rights. So far Harap certificates are concerned, they do not create tenancy except that farmers are cultivating the land. There is no violation of MLR-115 of Land Reforms Regulation, 1955. The reserve price for, the land was Rs,20,000 per acre while the respondent No.10 gave the highest bid of Rs,1,40,000 per acre and was declared successful bidder by the Committee in presence of hundreds of people. Under the terms and conditions of the auction the successful bidder was required to deposit 25% of the bid amount with the Committee and through pay order and cash paid Rs,33,60,000 towards 25% of the auction price on 5-11-1997.
7. Mr. Naseem Qamar contended that auction was held in fair and transparent manner at Baradari and everyone was allowed to participate in the auction and such programme of action was widely publicised and published in the newspapers; that the petitioners neither participated in the auction nor complied with the conditions notified by the Privatisation Committee in the press. Regarding contention of the petitioners that they being Haris cannot be ejected or deprived of the right of cultivation of land, learned counsel submitted that respondent No.8 has expressly provided that no Hari will be ejected by the purchasers and action if any will be taken strictly in accordance with law and under Tenancy Act, 1960. Lastly he urged that the petitioners have filed the petition with mala fide intention.
8. Mr. Amir Hani Muslim contended that Government of Sindh as a matter of policy decided to dispose of surplus agricultural land and plots and to privatise two sugar mills and Sindh Privatisation Committee held open and transparent auction at Baradari wherein respondent No.10 participated and offered highest bid of Rs,1,40,000 per acre against the reserved price of Rs,20,000 per acre. The respondent No.10 paid Rs,33,60,000 towards 25% of the bid amount on 5-11-1997.
9. According to the learned counsel even in the prayer clause of the petition factual controversies are involved which cannot be investigated or decided in a Constitution petition.
10. In support of his contentions Mr. Hani relied upon the following case-law:--
(i) Estate Officer, Government of Pakistan v. Syed Tahir Hussain PLD 1962 SC 75,
(ii) Majlis Intizamia v. Secretary to Government of West Pakistan PLD 1967 Lah. 709, (iii)Federation of Pakistan and 2 others v. Muhammad Sabir Khan PLD 1991 SC 476, (iv)Khairuddin and others v. Settlement Commissioner and others 1988 SCMR 988.
11. Mr. Zawar Hussain Jafri, Additional Advocate-General for respondents Nos.1 to 7 and 9 contended that respondent No.8 held the auction after observing all necessary formalities by the Sindh Privatisation Committee at open place. The petitioners did not participate in the auction of their own accord and the present petition was filed 5 days earlier than the date of auction of the land and since factual controversies are involved, the petition is not maintainable.
12. We have gone through the material placed with the case and minutely perused the documents and case-law referred to by Mr. Amir Hani Muslim.
13. Annexure "A" to the petition is the notice issued by the Chairman, Sindh Privatisation Committee and published in Daily Dawn in which details of the entire Sindh Government property were shown which was to be auctioned. The land of Agriculture Extension Service Centre Adilpur is also shown in this notice. According to the notice the auction purchaser has to deposit 25% of the bid amount at the close of auction. In the said notice it has also been provided that a person desirous of participating was required to deposit registration fee of Rs,5,000. Petitioners in their petition have no where stated or produced any document to prove that actually they had gone to participate in the auction. The auction was held in open place like Baradari at Karachi and not in a building as alleged by the petitioners. The Harap certificates issued by the Farm Manager do not create any right in favor of the petitioners. Moreover, in unequivocal terms respondent No.8 has stated in paradise comments that petitioners, if they are Haris, will not be ejected by the auction purchasers except with due course of law.
14. The provisions of Sindh Land Grant Policy on the face of it are not applicable in this matter because agricultural land involved in this petition is the Government property which as a policy matter Government decided to dispose of through public auction with other properties and the petitioners have no vested right in the land in question.
15. We have also minutely gone through the contents of the petition, paradise comments and the counter-affidavit filed by the respondent No.10. We find that nothing has come out in favor of the petitioners.
16. Now we would like to discuss the case-law referred to by Mr. Amir Hani Muslim learned counsel for respondent No.10. In PLD 1962 SC 75 respondent was served with notice so that he may vacate the Government accommodation occupied by him. That officer thereupon filed a petition before the erstwhile High Court of West Pakistan, Karachi Bench and a writ of certiorari to quash an order in respect of the occupancy by the respondent was issued. Government being aggrieved and dissatisfied preferred an appeal before the Honorable Supreme Court. Leave to appeal was allowed by their Lordships of the Supreme Court with the following observations:-- "We express our agreement, and do so with respect, with the view that the best occupation by a Government servant of Government-owned premises allotted to him, i,e, ear-marked for his occupation. Can be no more than a tenancy-at-will, which may be terminated by the State at any time without cause shown."
17. In PLD 1967 Lah. 709 learned Division Bench of Lahore High Court' has held that where a policy is laid down or directions given for guidance of the officers connected with a department without any statutory backing, no claim of a vested right can arise on account of such directions or rules.
18. In the case reported in 1988 SCMR 988 their Lordships of the Supreme Court have laid down the dictum that disputed question of fact could not be determined in Constitutional jurisdiction of a Court which is summary in its character.
19. In the last case reported in PI.,13 1991 SC 476 the observations of their Lordships are that questions of title of property and possession thereof could not be resolved except through proper trial. Case involving such questions did not qualify for entertainment in the Constitutional jurisdiction of the High Court.
20. In this matter admittedly the agricultural land involved is owned by the Government of Sindh and the same was being maintained by the Director-General, Agriculture Extension. Government of Pakistan and Government of Sindh as a policy matter decided to dispose of the Government land, plots and other properties situated in the whole of the Province of Sindh including the Agriculture Extension Service Centre Adilpur. The Sindh Privatization Committee published the notice of the auction giving full particulars of the properties including location, area and reserved price of the land and the condition of registration fee of Rs,5,000 by any one aspiring to participate no the bid.
21. Auction was held on 5-11-1997 and the respondent No,10 offered highest bid of Rs,1,40,000 per acre.
22. He also deposited Rs,33, 60,000 towards 25% of the total price of the land measuring 96 acres perusal of the petition shows that even before the proposed auction, petitioners filed this petition on 31-10-1997 i,e, 5 days before the auction. We are unable to believe the .version of the petitioners that auction was held in a building and they were not permitted to take part in the auction whereas petition itself was filed 5 days prior to the auction which was held on 5-11-1997. The notice about the auction was published in the national and international press viz. Sindhi, Urdu and English newspapers. If the petitioners were serious to take part in the auction they should have paid the registration fee of Rs,5,000 or sent sealed bids with pay order of 25% of the offered amount to the Sindh Privatization Committee but there is no such proof or document available on the record.
23. Lastly there is assurance from respondent No.8 that the purchaser or any of the respondents cannot eject the petitioners and deprive them of the right of cultivating the land without due course-of law.
24. The case-law referred to by Mr. Amir Hani Muslim is relevant and applicable to the facts of the present case which we respectfully follow. The petitioners have apparently no vested right to the land involved in the petition and there is no violation of any law so as to invoke the extraordinary jurisdiction of this Court. Apart from this factual controversies are involved in the petition which cannot be gone into by this Court in Constitutional jurisdiction.
25. Since the bid in favor of the respondent No.10 has been accepted, he has to pay up the balance amount to the respondent No.8 which comes to more than Rs, one crone. The delay in payment has prejudiced the interest of respondent No.8 which was purely on account of pendency of this petition.
26. For the foregoing reasons we are of the considered opinion that the petition is devoid of merits which accordingly is dismissed with no order as to costs, along with pending application and recall the order, dated 9-12-1997.
27. On 8-9-1998 after hearing the parties the petition was dismissed in liming by a short order. Above are the reasons for the same.