IN THE SUPREME COURT OF PAKISTAN

(Appellate Jurisdiction)

Present:
Mr. Justice Nasir-ul-Mulk, HCJ
Mr. Justice Gulzar Ahmed
Mr. Justice Mushir Alam

Civil Petitions No.1700 & 1701 of 2011

Against judgment dated 28.09.2011 of Lahore High
Court, Lahore, passed in Intra Court Appeals No.154 &
155 of 2009.

American International School System Petitioner (in both cases)

VERSUS
Mian Muhammad Ramzan & others Respondents (in CP#1700/11)
Sakina Bibi & others Respondents (in CP#1701/11)

For the Petitioner(s): Mr. Rashid A Rizvi, Sr.ASC

For the Respondent(s): Ch. Amir Hussain, Sr.ASC

#1-3 in CP#1700 & #1-2 in CP#1701/11
Rana Shamshad Khan, AAG, Pb.
#4-8 in CP#1700 & #3-7 in CP#1701/11

Date of Hearing: 09.12.2014

JUDGMENT

Mushir Alam, J-. Through this single judgment, we

propose to decide Civil Petitions No.1700 & 1701 of 2011, filed by the
petitioner-American International School System, arising out of a
common judgment of Lahore High Court, Lahore, dated 28.09.2011,
rendered in Intra Court Appeals No.154 and 155 of 2009.

2. Facts, in brief, appear to be that each set of private

respondents’ refugee claimants asserted their rights in respect of
subject property in their respective possession (total land measuring
59 Kanals 2 marlas, situated at Harbanspura, Tehsil Lahore Cantt,
District Lahore) to claim subject land against their purported rights
as occupancy tenant and transferee from Settlement Department
under the residual property scheme through legal proceedings,
which culminated in the judgment cited as Muhammad Ramzan v.
Member (Rev.)CSS (1997 SCMR 1635). It was held that after the
issuance of “Scheme for Management and Disposal of Available
Civil Petitions No.1700 & 1701 of 2011
2

Urban Properties, 1977” dated 16.5.1977 issued under Section 3 of

the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975
as prepared by the Government of Punjab (hereinafter referred to as
‘Scheme, 1977’) and consequent upon issuance of Notification
No.1697-73/1567-R(L), dated 16.5.1973, issued by the Chief
Settlement Commissioner, subject agricultural land was declared as
‘Building Site’ and could not be allotted or transferred against
unsatisfied claims. They were, however, given liberty to assert their
rights in accordance with law, if so available.

3. The private set of respondents in each of the Petition

herein, however, retained their possession and never availed the
benefit of Scheme, 1977. It also appears that subject property on the
direction of the then Chief Minister was allotted to the Petitioner-
School through allotment order dated 10.05.2007 made by the
Member (Colonies), Board of Revenue, Punjab, Lahore.
Consequently, each set of private Respondents herein were forcefully
dispossessed by the Executive District Officer, Government of the
Punjab, Lahore, from the subject property and possession was
handed over to the Petitioner-School.

4. Both sets of the private respondents challenged their

respective dispossessions and allotment of the subject land to the
petitioner-School through two different constitution petitions (Writ
Petitions No.5939 & 5940 of 2007) claiming their right, title and
interest in the land as against the petitioner-School. Both the Writ
Petitions were heard together and dismissed through a common
judgment dated 19.02.2009, whereby a learned Single Judge in
Chambers in the Lahore High Court held that the petitioners therein
(private respondents herein) have no locus standi to file the
petitions and at the same time, the allotment made in favour of the
petitioner-School was found to be in order. It was, however,
observed that the price at which the property was allotted to the
Petitioner-School was on the lower side and they were directed to
pay the amount of the subject property as per evaluation to be
carried out by the Government of Punjab. The judgment of the
learned Single Judge was challenged by each set of the private
respondents herein, through Intra Court Appeals No.154 and 155 of
2009. A learned Division Bench of the High Court vide judgment
Civil Petitions No.1700 & 1701 of 2011
3

dated 19.09.2009 maintained the finding against the private

respondents herein, for the reasons as stated therein, that they have
no locus standi to claim subject property. However, allotment order
dated 10.05.2007 whereby the subject land was allotted to the
petitioner-School by way of private treaty at a throwaway price of
Rs.600,000/- per kanals was held to be illegal and without lawful
authority; it was further held that Colonies Department, Government
of the Punjab had no jurisdiction to deal with subject Evacuee
Property, and authority vests with Member (Residual Properties),
Board of Revenue, Punjab as per clause 30 of Scheme for the
Management & Disposal of Available Urban Properties, 1977.

5. It appears that the Judgment dated 28.9.2011 rendered

in Inter Court Appeals was challenged by the private set of
Respondents herein, through Civil Petitions No.27 & 28 of 2012
before this Court, which however, were dismissed being barred by
time. Same judgment dated 28.09.2011 has been challenged by the
petitioner-School through Civil Petitions No.1700 & 1701 of 2011
which, are being decided through this common judgment.

6. Mr. Rashid A. Rizvi, learned Sr.ASC for the petitioner-

School has contended that there were two contenders of the subject
property; one is private sets of respondents in each of the two
petitions and other is the petitioner-School. It was urged that since
the private respondents have lost their claim up to this Court, and
their Petitions for Leave to Appeal have since been dismissed, the
subject property in terms of the allotment order dated 10.05.2007,
referred to in the narrative above, was validly allotted by the
Provincial Government and the petitioner-School had acquired the
same through a private treaty and a sale deed to such an effect was
also executed in favour of the petitioner-School in terms of the
decision of the Provincial Cabinet dated 05.01.2007 authorizing sale
of 57 kanals of State land in their favour at the rate of Rs.600,000/-
per Kanal. It was further urged that pursuant to another decision of
the District Price Assessment Committee another piece of land
measuring 40 Kanals was approved in their favour on 14.04.2007.

7. Mr. Rizvi, learned ASC for the Petitioner-School, has

further contended that since there is no contest, no exception could
be taken to the disposal of the land by the Provincial Government by
Civil Petitions No.1700 & 1701 of 2011
4

way of a private treaty with the petitioner-School and a number of

other institutions were also granted such land in the similar manner.
When attention of the learned counsel was drawn to order of this
Court passed on 26.02.2013, which clinches to the main issue
whereby he was required to satisfy the Court as to the proprietary
and legality of the transfer made in favour of the petitioner-School
and also as to the Authority of the Member (Colonies) Board of
Revenue, Punjab. The said order reads as under:-
“After hearing learned counsel for the parties, we
would like to issue notice to the Advocate General
(Punjab) to assist us generally in the matter and
particularly in interpretation of Section 11 & 12 read
with Section 30 of the Scheme for the Management
and Disposal of Available Urban Properties situated in
the Province of the Punjab dated 13.01.1977, as to
whether the power of the Member Board of Revenue
(Residual Properties) under Section 30 to transfer
public lands is unfettered and whether such properties
can be transferred only through public auction under
Sections 10 & 11 of the Scheme.”

8. Mr. Rizvi, learned ASC for the Petitioner-School in

response and in support of his assertion placed heavy reliance on
paragraph 30 as amended by Notification dated 18.10.1977 read with
paragraph 12 of Scheme, 1977 as framed under Section 3(1) read with
Section 1 of the Evacuee Property and Displaced Persons Laws
(Repeal) Act, 1975 [hereinafter referred to as ‘Act, 1975’]. It was
contended that in terms of the powers vested in the Government,
subject property was transferred to the petitioner-School in the
‘public interest’ and no exception to the exercise of such authority by
the Government could be taken. It was urged that as per Para 12
read with para 30 of the Scheme 1977, the Government of Punjab,
had the authority to sell the subject property through private
negotiation, which powers were rightly exercised in the public
interest as the Petitioner-School has been imparting education and
the Government of Punjab, lays much emphasis on education.

9. Learned Assistant Advocate General, Punjab has

contended that the petitioner-School was conveyed 84 Kanals of
Evacuee Property on political considerations at a throw away price of
Rs.600,000 per Kanal. It is stated that the subject Evacuee Property
is situated within the heart of the Municipal Limits of Lahore, and
the Settlement Commissioner, Punjab, through Notification dated
16.5.1973 issued under Section 13 of the Displaced Person (land
Civil Petitions No.1700 & 1701 of 2011
5

Settlement Act, 1958 declared all the agricultural lands within the
Municipal Limits of Lahore as ‘Building Site’. It was urged that all
the Settlement Laws were repealed by virtue of Displaced Persons
Laws (Repeal) Act, 1975, with effect from 1.7.1974. All the Evacuee
Properties were transferred to the Provincial Government for their
disposal in accordance with the Scheme, 1977 prepared under
Section 3 of the Act of 1975.

10. It was next urged that subject land was not the ‘State
Land’ but the ‘residual evacuee property’ under the Act of 1975, and
could be disposed off strictly in accordance with the Scheme, 1977
framed for the purpose under Section 3 of the Act, 1975. It was
further urged that such Scheme, 1977 for the disposal of residual
evacuee property was prepared in the year 1997, which has received
approval in the case reported as Muhammad Ramzan (supra) and
so also in the case of Member, Board of Revenue v. Rafaqat Ali
(1998 SCMR 2596). It was, therefore, urged that the land could
not have been dished out to the petitioner-School by the Member
(Colonies), Board of Revenue, Punjab at a throw away price.
According to him, per Scheme 1977, the competent authority is
‘Member, Board of Revenue (Residual Properties)’ appointed by the
Government of Punjab. It was urged that the Petitioner-School did
not qualify the criteria as laid down under the Scheme, 1977,
therefore, was and is not entitled to be doled out State property for a
song. It was contended that subject property is a valuable piece of
land falling within the Municipal Limits of Lahore and under the
Scheme, 1977 it could only be sold out through an open auction
under Para 11, thereof.

11. We have heard the learned counsel for the petitioner-

School as well as the learned Assistant Advocate General, Punjab and
perused the record. In order to appreciate the contentions of
respective parties it would be beneficial to glance at Paragraphs 11,
12 and 30 as amended of the Scheme, 1977, which read as follows:-

11. Sale by auction.-- A house, shop or a building

site having permanent construction for the transfer of
which no application is received and every property
that is cancelled from the name of a defaulter and a
vacant building site shall be deposed of by
unrestricted public auction.
Civil Petitions No.1700 & 1701 of 2011
6

12. Disposal of houses, shops or building sites by

negotiation.—If a house, a shop or a building site
having been put to auction twice fetches no bid or
fetches a bid short of the reserve price, it shall be
disposed of by negotiation by inviting sealed tenders
which shall be opened by the Deputy Administrator
(Residual Properties) of the area concerned in the
presence of the tenderers. If the highest offer made
for such a house, a shop or a building site is equal to
or exceeds 75% of its reserve price, it may be
accepted by the Deputy Administrator (Residual
Properties) and where the highest offer made is
below 75% of the reserve price but not less than 50%,
it may be accepted by the Administrator (Residual
Properties), of the area or where the highest offer
made is below 50%, it may be accepted by the
Member, Board of Revenue (Residual Properties)
(underlined to add emphasis)”.

“Un-amended para 30.

30. Powers to transfer properties in public
interest. The Member, Board of Revenue (Residual
Properties), may transfer, in public interest any
available property in such manner and on such price as
he may deem proper.

13. Paragraph 30 of the Scheme 1977 was amended through

Notification dated 18.10.1977, whereby the words “Public Interest” in
Clause (1) were deleted and sub paragraph (2) was added; after the
amendment it reads as follows;
30 .Powers to transfer properties.(1) The Member,
Board of Revenue (Residual Properties), may transfer,
in public interest, any available property in such
manner and on such price as he may deem proper.

s (2) “Where a property is partly available property and

partly owned by any person, the Member of Revenue
(Residual Properties) may transfer the available
property on application to such person on payment of
transfer price.”

14. As noted in the narrative above, the status of the subject

property was already determined by this Court in the case of
Muhammad Ramzan (ibid), as ‘residual evacuee property’ and a
“building site”. Building Site, Government, and Member Board of
Revenue (Residual Properties) are defined in the Chapter I,
definition Paragraph 1, of the Scheme, 1977 as follows:-
(d) “Building Site” means any plot of land which is
not with in a well-defined compound of a
permanent building and includes:-
(i) A site on which the permanent construction,
if any does not exceed in area by 1/8th of the
site.
(ii) Any site on which any building existed but
completely demolished by flood, fire,
incendiary or by any natural clammily.
(g) “Government” means the Government of Punjab;
Civil Petitions No.1700 & 1701 of 2011
7

(h) “Member” Board of Revenues (Residual

Properties) means the Member, Board of
Revenue appointed under the Board of Revenue
Act/Rules”
15. When Mr. Rizvi, learned ASC was confronted that the
allotment relied upon by him does not speak of any ‘public interest’,
he promptly responded that ‘public interest’ which was mentioned in
paragraph 30, of the un-amended provision of the Scheme, 1977 was
deleted through Notification dated 18.10.1977, therefore, it cannot be
pressed into service now. Contentions of the learned counsel are
fallacious for more than one reason. Firstly, Mr. Rizvi, learned ASC
for the Petitioner-School, was not able to controvert that the status
of the subject property is ‘residual evacuee property’. Secondly,
heading of any provision does not govern or control the substantive
provision; it may be used in case of an ambiguity to understand the
purport and object of any provision and or enactment thereof.
Thirdly deletion of ‘public interest’ in the title of para 30, through
amending Notification is purposive and understandable as, by
addition of subsection (2) thereof, another class of the property was
added viz ‘where a property is partly owned by a person”. Under
the added sub paragraph (2) to Paragraph 30 of Scheme, 1977, a
part owner was given an option to acquire such property on
payment of transfer price’ in which case obviously no public interest
would be attracted, which option could not be extended to any other
class of persons. Where the property as a whole is available, as
“Building Site” as is in the instant cases, its transfer is to be made in
the public interest, as is clearly specified in the substantive part of
sub paragraph (1) of Paragraph 30 ibid; which remained un-
amended. Fourthly, paragraph 30 is not to be read in isolation but, is
to be read with Sections 11 & 12 of the Scheme, 1977, which read as
follows:-
“11. Sale by auction.-- A house, shop or a building
site having permanent construction for the transfer of
which no application is received and every property
that is cancelled from the name of a defaulter and a
vacant building site shall be deposed of by
unrestricted public auction.

12. Disposal of houses, shops or building sites by

negotiation.—If a house, a shop or a building site
having been put to auction twice fetches no bid or
fetches a bid short of the reserve price, it shall be
disposed of by negotiation by inviting sealed tenders
which shall be opened by the Deputy Administrator
(Residual Properties) of the area concerned in the
presence of the tenderers. emphasis If the highest offer
made for such a house, a shop or a building site is
Civil Petitions No.1700 & 1701 of 2011
8

equal to or exceeds 75% of its reserve price, it may be

accepted by the Deputy Administrator (Residual
Properties) and where the highest offer made is below
75% of the reserve price but not less than 50%, it may
be accepted by the Administrator (Residual
Properties), of the area or where the highest offer
made is below 50%, it may be accepted by the
Member, Board of Revenue (Residual Properties)
(underlined to add)”.

16. Admittedly, the land subject matter of the present

proceedings is a ‘building site’ within the contemplation of definition
of Paragraph 1(d) of the Scheme, 1977 which is as follows:-
“(d) ‘Building Site’ means any vacant plot of land which
is not within a well defined compound of a permanent
building and includes

(i) a site on which the permanent construction, if

any, does not exceed in area by 1/8th of the site;

(ii) any site on which any building existed but was

completely demolished by floods, fire, incendiary
or by any natural calamity.”

17. Paragraph 12 of the Scheme, 1977 as reproduced above

is not attracted for the simple reason that subject property was never
“put to auction twice” before invoking “negotiation.” Even
negotiation, within the contemplation of Paragraph 12 ibid is not
negotiation with one person of any body’s choice, but very intent of
Paragraph 12 thereof; is vividly clear that such negotiation is to be
carried out “by inviting sealed tenders, which shall be opened by the
Deputy Administrator (Residual Properties) of the area concerned
in the presence of the tenderers.” In event, highest offer received for
such a property is equal to or exceeds 75% of its reserve price,
authority vests in the Deputy Administrator (Residual Properties) to
accept it and where the highest offer received is below 75% of the
reserve price but not less than 50%, authority to accept vests in the
Administrator (Residual Properties), of the area or where the
highest offer received is below 50%, the authority vests in the
Member, Board of Revenue (Residual Properties) to accept the bid,
but before accepting bid of highest bidder it is incumbent on the
designated authority to negotiate with the highest bidder whosoever
it may be to obtain best possible value for the property put to
auction. Admittedly, in instant case no sealed tenders or bids from
any interested contenders were ever invited, but subject valuable
commercial “Building Site” was quietly doled out to the Petitioner-
School on the directions of the then Chief Minister, at the rate of
Civil Petitions No.1700 & 1701 of 2011
9

agricultural property. Therefore, Mr. Rizvi, learned ASC for the

petitioner-School was not able to persuade us to agree with him that
the subject property was sold in exercise of power conferred under
Paragraph 12 read with paragraph 30, of the Scheme, 1977. Even
otherwise record shows that subject property was not sold out to the
petitioner-School by the Member, Board of Revenue (Residual
Properties), who for the purposes of disposing off the residual
evacuee property is the competent authority under the Scheme, 1977.

18. It was next argued by Mr. Rizvi, learned Sr.ASC for the
petitioner-School that framing of Scheme by the Government is to be
considered as in line with the concept of Principal and Agent. The
Government of Punjab acts as a Principal through its agents and in
this case by framing the ‘Scheme, 1977’ it did not divest itself from
the ownership of the State land, and retained all the plenary and
ancillary authority and jurisdiction to deal with its property together
with the “Member, Board of Revenue (Residual Properties)”. To
support his contention, he has placed reliance on Abdur Rahim v.
Federation of Pakistan (PLD 1988 Supreme Court 670).
Reliance on cited case is totally misplaced. Contentions are ill-
founded. In cited case, the Government in exercise of powers
conferred on it under clause 18 (2) of the Customs Act, 1969 imposed
regulatory duty, which was sustained by this Court.

19. Any Government under the constitutional dispensation

derives power and authority under the constitution itself and or
under the legislative instrumentalities as may be conferred by the
competent legislature. Any public functionary, how high so ever it
may be, is subservient to the Constitution and law and has to act
within the boundaries assigned by the Constitution and law framed
thereunder. It is now a well entrenched in administrative
jurisprudence of Pakistan that all the public functionaries including
the Chief Minister is bound to deal with the public property strictly
in accordance with the parameters laid by the law, rules and
regulation framed thereunder. In a number of cases including in the
cases of Abdul Haq Indher v. Province of Sindh (2000 SCMR 907)
and Iqbal Hussain v. Province of Sindh (2008 SCMR 105), where
the plot of land was allotted on the direction of the Chief Minister,
against the law and the scheme, was struck down by the High Court,
Civil Petitions No.1700 & 1701 of 2011
10

which was maintained by this Court and it was categorically held by

this Court that the public functionaries are not bound to follow
illegal orders even of the Chief Minister. In the instant cases, as
record shows that on mere desire of the then Chief Minister of
Punjab, the Member (Colonies) BOR, Punjab doled out valuable
“residual evacuee property” at a throw away price to the petitioner-
School, knowing fully well that the subject property is not the State
land and that the subject evacuee land could only be disposed off
through open auction in terms of the Scheme, 1977 and otherwise, he
was not at all competent to undertake such exercise, which authority
under the Scheme, 1977 vested in the Member, Board of Revenue
(Residual Properties).

20. The Chief Minister, under the constitutional

dispensation is neither the King nor Monarch but, is in the domain
of trust and under Article 5 of the Constitution of Pakistan he is
obligated to obey the Constitution and law like any other ordinary
citizen, though he exercises the executive authority as Head of the
Provincial Government either directly and or through the Provincial
Ministers, in the name of Governor, but exercise of such authority is
not brazen or arbitrary but subject to the Constitution, as he has
taken oath to “discharge his duties and perform” his functions,
honestly, to the best of his ability, faithfully in accordance with
constitution of the Islamic Republic of Pakistan and the law”. His
desire and direction, how admirable or praiseworthy it may be
cannot be implemented by the subordinate formation in utter
disregard and breach of law, and or rules and or regulation framed
hereunder. All executive orders emanating from highest of the
authority must be backed by law. It may be observed that the
Government has no unfettered authority to dole out any property in
any manner on its own whims and fancy. Indeed, the Government
functions and operates through different instrumentality under well
guarded rules and procedures and in accordance with law. This
Court, at page 1661 in the case of Muhammad Ramzan (ibid) held as
under:-
“8. With the repeal of the Evacuee Laws in 1975, the
unalloted agricultural land vested in the Provincial
Government against price paid for it. Thereafter, its
disposal had to take place according to the Scheme to be
framed by the Provincial Government. The Scheme
framed by the Provincial Government made no
Civil Petitions No.1700 & 1701 of 2011
11

provision for allotments to be made against the pending

verified produce index units. For this reason the
allotment made after 1975 in favour of the persons from
whom the appellant was claiming was wholly without
jurisdiction and lacking in authority. Notwithstanding
that it was made on the direction of the Board of
Revenue, it could not be recognized in law nor could it
be allowed to stand on record. It was void ab initio.
Consequently, its removal even by an illegal order
would not suffer from any infirmity but would rather
re-establish the legal and the correct status of the
property. On this view of the matter the decree of the
Civil Court could also not remain intact.”

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 substantiate 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. For reference, one may see the cases
reported as Union Council Dhabeji v. Al-Noor Textile Mills Ltd
(1993 SCMR 7) and Multiline Associates v. Ardeshir Cowasjee
(PLD 1995 SC 423), Abdul Haq Indher v. Province of Sindh
(2000 SCMR 907), Al-Shafique Housing Society v P.M.A (PLD
1992 SC 113), Taj Muhammad v. Town Committee (1994 CLC
2214) and Sindh Peoples Welfare Trust v. Government of Sindh
(2005 CLC 713).

22. For the foregoing discussion, we do not find any reason

nor could the learned counsel point out any to interfere with the
impugned judgment. Accordingly, leave is declined and the petitions
having no merits are dismissed.

Chief Justice

Judge

Judge

ISLAMABAD, THE
9th of December, 2014
Zubair
Not Approved For Reporting