This judgment will dispose of Writ Petition No.9891 of 1992 and Civil Revision No. 1581 of 1994, since it is considered expedient to decide them together.
2. In dispute is colony land over which construction in the shape of shops have been raised by the writ petitioners, as claimed by them. The shops are in possession of respondents Nos.6 to 51 who are claimed to be tenants of the petitioners. It is asserted that somewhere in 1955 the writ petitioners were granted lease of the land by the Municipal Committee over which they constructed the shops and put the private respondents in possession as tenants. Letter dated 30- 8-1992 from Secretary, Colonies to Deputy Commissioner, Khushab stated:-- "You are requested to please accept the sale price from the lessee shopkeepers who raised construction themselves of Ittehad Market, Khushab subject -to the condition that these shops are not hit by the stay order obtained by the Municipal Committee, Khushab."
2-A. This letter was withdrawn vide letter, dated 7-9-1992 issued by the Board of Revenue and addressed to the Deputy Commissioner, Khushab. In the said letter the Deputy Commissioner is directed to make factual report on the application from Qazi Alaf Hussain and others and the applications of Haji Muhammad Isma eel Khan arid others, the writ petitioners. The writ petitioners thus, feel aggrieved and have filed this Constitutional petition praying that the letter of withdrawal dated 7-9-1992 be declared as without lawful authority. It was further prayed that respondents Nos. l to 4 be restrained from transferring the land in favour of respondents Nos.6 to 49/51.
3. Civil Revision No. 1581 of 1994 has arisen out of the suit filed by the Municipal Committee, Khushab for a declaration to the effect that letter dated 22-8-1977 issued by the Secretary (Colonies) in respect of receipt of rent of shops as described in the plaint, by the Deputy Commissioner be declared as illegal and ineffective against the rights of the Municipal Committee. Consequential relief was also prayed to the effect that the respondents be restrained from denying the rights of the petitioner-plaintiff on open land. The case set up by the Municipal Committee in the plaint is that the Committee has been in possession of the land for about 50 years and has always considered itself to be owner in possession. It is also pleaded that the land in dispute is not Nazool.
The suit was contested by the Province of Punjab wherein it was pleaded that the land throughout belonged to the Provincial Government, at no stage was given to Municipal Committee, Khushab, that the Municipal Committee has no authority in law to transfer or lease out the land and if it has done any such thing, it has concealed the real facts and has practised fraud upon its vendees.
Some legal objections were also taken. The issue arising out of the pleadings were duly tried. Vide judgment dated 22-6-1992 the suit was dismissed by the Trial Court. The appeal taken by the plaintiff-Municipal Committee was dismissed on 11-11-1993. Hence this revision.
4. Mr. Farooq Amjad Mir, Advocate, for Committee-petitioner plaintiff has attacked the concurrent findings as incorrect and has maintained that in fact the plaintiff has been able to establish its title in the land. He has urged that the very fact that the plaintiff has been alienating pieces of land suffices to establish plaintiff's title. In the alternative it is argued that even if it be concluded that the plaintiff is not owner of the land; the plaintiff is still entitled to recover the rent from the shops as the occupants have also along been accepting the plaintiff as their landlord and have been paying rent as such. It is argued that the Colonization of Government Lands Act, 1912 or its section 32 is in no manner of application to the land in hand.
5. Syed Zafar A.I, Advocate, appearing for respondents Nos. A to 8 in Civil Revision has, on the other hand, supported the decree under challenge by arguing that the findings being concurrent cannot be interfered with in Civil Revision unless they are shown to have been arrived at in disregard of any material piece of evidence or otherwise perverse. He has further objected to the maintainability of this revision on the ground that on 1-11-1995, this revision was dismissed for non-prosecution on the statement of Mr. Farooq Amjad Mir, Advocate, that the petitioner yeas not interested in prosecuting this case and that he be allowed to withdraw his Wakalatnama. Syed Zafar A.I, Advocate submits that on an Application (C.M. No.313 of 1997) revision is allowed to be revived subject to all just exceptions. His argument is that the application for revival was filed on 10-4-1997 which was hopelessly barred by time and in the absence of any application form condonation, no question of revival of the revision arises. This argument has been answered by Mr. Farooq Amjad Mir, Advocate, by arguing that once the Court permitted the learned counsel to withdraw his power of attorney, it ought to have sent a notice to the plaintiff/petitioner for making alternative arrangement.
6. The objection of Syed War A.I, Advocate, to the continuation of the revision has to be upheld. The order, dated 1-11-1995 shows that it is not simple statement of withdrawal of power of attorney. The counsel, in fact had stated that "the petitioners are not interested in prosecuting this case". If it was a case of simple withdrawal of Wakalatnama, the argument of Mr. Farooq Amjad Mir, Advocate, would have carried weight. However; it is not a case of simple withdrawal. It is a case of the counsel stating that the petitioner is not interested in pursuing the case. In such a case the Court has no option but to dismiss the same lot non-prosecution. On 1-11-1995, Mr. Farooq Amjad Mir, Advocate, himself P was present and did not request the Court to issue a notice to the petitioner for prosecuting the case.
7. Additionally the application for revival (C.M. No.313 of 1997) was hopelessly barred by time. It is stated in application itself that the petitioner learnt of the dismissal for non-prosecution on 28-10- 1996. The application itself was filed on 10-4-1997, almost after 6 months. Neither any application for condonation has been filed nor any explanation has been given as to why the petitioner failed to take any action at least for 28-10-1996 when it admittedly learnt of the order of dismissal for non-prosecution. I, therefore hold that the revision stood dismissed to 1-11-1995.
8. Since, however, the arguments have also been addressed on merits, the same may be dealt with. The two Courts have concurrently held that the plaintiff has not been able to show that the land vested in it. On the contrary the documents produced clearly establish that it is the Provincial Government who is owner of the land. Mere treatment by the Municipal Committee of the land as its own for number of years is not enough to vest title in it nor the B grant of lease of land by it to various persons or even alternation of proprietary rights suffices to constitute Municipal Committee, the owner. The perusal of letter Exh.P.1, the subject-matter of suit, shows that it is a letter issued in terms of the letter of the Board of Revenue dated 22-8-1977 to the effect that the Board of Revenue has decided that State/Nazool land could not be transferred free of land to the decided Bodies and Development Authorities. It further states that as such the rent/land is to be recovered by the office of the Deputy Commissioner. Letter dated 22-8-1977 is, therefore, a policy letter and it has not at all been shown as to how the Board of Revenue is incompetent to issue such a policy letter.
9. Be that as it may, the findings of the two Courts being concurrent are not open to question in this revision, merely on the ground that in view of evidence another conclusion is possible. This revision is devoid of merit and is dismissed for this reason also.
10. The Constitutional petition is also liable to dismissal on the ground that it is raising questions of title-which involve marshallig of facts and which cannot be appropriately done in exercise of Constitutional jurisdiction. Such controversy can more justly and adequately be decided in the civil suit. In the connected revision which has been dismissed the concurrent findings of the two Courts below to the effect that the land underneath belongs to the Provincial Government has been upheld. Writ petitioners did not claim to be owner of the land but submit that under a lease from Municipal Committee granted in the year 1955 they have constructed the shops. However, no deed of lease has been produced on file and whether in view of the findings in civil revision, the Municipal Committee itself was competent to grant any lease, is a big question. The initial letter, dated 30-8- 1992 requesting the Deputy Commissioner to accept the sale price from the licensee shopkeepers who raised constructions themselves as Ittehad Market, Khushab was withdrawn within 7 days vide the impugned letter, dated 7-9-1992. Malik Azam Rasool, Advocate could not show that in law the earlier letter could not have been withdrawn, even though it had not been acted upon. The further question that before eviction the petitioners are entitled to mesne profits and compensation is equally a question fit for determination in the civil suit.
11. For all the above reasons, 1 would hold that the impugned letter, dated 7-9-1992 cannot be said to have been issued without lawful authority. Consequently this petition is dismissed without any order as to costs. It is, however, clarified that this judgment will not debar the petitioner from prosecuting a claim for mesne profits and compensation in the Civil Court and nothing stated in this judgment will prejudice the determination of the same.