Ashiq Muhammad vs Pop etc.

Stereo. H C J D A 38

JUDGMENT SHEET

LAHORE HIGH COURT,

MULTAN BENCH, MULTAN

JUDICIAL DEPARTMENT

W. P. No. 2758 / 2016

Ashiq Muhammad Versus Province of Punjab & 04 others

JUDGMENT

Date of Hearing: 02.03.2022 Petitioner(s) By: Mian Muhammad Hanif, Advocate

Respondent(s) By: Mr. Khush Bakht Khan, Assistant Advocate General

ABID HUSSAIN CHATTHA, J: Through this constitutional Petition, the Petitioner seeks a direction against Respondents No. 1, 3 & 4 to confer proprietary rights and execute Conveyance Deed in his favour in terms of Notification No. 3215-79/3973-C-II dated 03.09.1979 (the “Notification”).

2.Briefly, Lot No. 3 measuring 12 Acres, 06 Kanals & 09 Marlas situated in village Rakh Khanpur, Tehsil & District Muzaffargarh (the “Property”) was allotted to the Petitioner under Section 10(3) of the Colonization of Government Lands (Punjab) Act, 1912 under 10 years Lease Cultivation Scheme vide Allotment Letter issued in terms of notification No. 6815-67/200-CLI dated 07.02.1968 with effect from Khareef 1968. The lease period was extended in 1978. The Petitioner submitted an application on 30.12.1979 for grant of proprietary rights pursuant to the Notification. The Assistant Commissioner, Muzaffargarh declared the Petitioner entitled for the grant of proprietary rights vide order dated 08.06.1980 and directed the Petitioner to deposit Rs. 58,950/- in 06 monthly 10 equal installments which were duly deposited by him. After deposit of dues as directed, the Assistant Commissioner based on reports of revenue officials vide order dated 08.04.1986 confirmed that the Property

was situated outside the prohibitory zone limits of the Municipality. Nevertheless, the matter lingered on and Conveyance Deed was not executed. The Petitioner again submitted an application on 05.04.2006 for grant of proprietary rights and execution of Conveyance Deed in his favor. However, again fresh reports were called as to whether the Property is located inside or outside the prohibitory zone. Reports of Patwari and Qanoongo dated 26.04.2006 and Tehsildar dated 04.05.2006 concluded that the Property is not located within prohibitory zone. But the Deputy Commissioner on 28.05.2007 referred the matter for fresh determination of the location of the Property regarding Municipal limits. Later, the Respondents took the plea that the land is situated within the prohibitory zone, therefore, the proprietary rights could not be granted as per Condition No. 2(b) of the Notification.

3.Learned counsel for the Petitioner submitted that the Petitioner has long fulfilled all the other terms and conditions of allotment of the Property including deposit of complete dues. Initially, three different reports have concluded that the allotted Property did not fall within the prohibitory zone and as such, he was entitled for the execution of the Conveyance Deed in his favour in terms of Condition No. 14 of the Notification. Hence, refusal to execute the same is in violation of the fundamental rights of the Petitioner conferred upon him under the Constitution of Islamic Republic of Pakistan, 1973. He also referred to earlier Writ Petitions No. 453 & 1497 of 2004 allowed on 08.03.2011 on the same issue in favour of similarly placed persons. Civil Appeal No. 781- L/2011 preferred by the Province of Punjab through District Collector, Muzaffargarh in this behalf was also dismissed by the August Supreme Court of Pakistan vide order dated 28.03.2014.

4.Conversely, learned Law Officer submitted that the allotted Property is situated in prohibitory zone, therefore, proprietary rights could not be granted to the Petitioner as per condition mentioned in Section 2(b)(iv) of the Notification. This condition prohibits the grant of any land lying within a belt of five miles running along and on the outer side of the outer limits of a Municipality. As such, instructions of the Board of Revenue contained in letters No. 390-86/775-CL-I dated 20.02.1986 and

No. 3094-92/317-CL-I dated 26.01.1994 prohibit the grant of proprietary rights regarding lands leased out under Temporary Cultivation Schemes which fall within the prohibitory zone unless the land is required for public purpose only i.e. for the construction of schools and hospital etc. If the lessee insists for confirmation of proprietary rights, he can be given alternate land outside the prohibitory zone to the extent of the land held by him within the prohibitory zone. He stated that in a similar case titled, “Muhammad Sadiq (deceased) through LRs v. Province of Punjab etc.” (W. P. No. 2801 / 2012), a Division Bench of this Court vide Judgment dated 17.06.2015 held that the Petitioners therein may move for alternate land on the basis of merits pressed therein. In this behalf, Civil Petition No. 1543/2015 was filed before the Hon'ble Supreme Court of Pakistan which was also dismissed by refusing leave to appeal.

5.It transpires from record that the only reason for which execution of Conveyance Deed was declined to the Petitioner is that the Property fell within the prohibited zone. In para-wise comments filed by the Respondents, it was admittedly that the Property was allotted to the Petitioner in the year 1968 under ten years Lease Cultivation Scheme. It was not denied that at the time of allotment of leased Property, it did not fall in the prohibited zone. It is simply stated that the Property is situated in the prohibitory zone, therefore, proprietary rights cannot be conferred in terms of Section 2(iv)(b) of the Notification read with instructions contained in Letters dated 20.02.1986 and 26.01.1994 referred supra. There is no denial that Assistant Commissioner, Muzaffargarh vide order dated 08.06.1980 had held the Petitioner entitled to the grant of proprietary rights subject to deposit of outstanding dues as the Property was not included in the prohibitory zone. After the deposit of remaining dues, the Report dated 01.04.1986 submitted by Naib Tehsildar to the Assistant Commissioner, Muzaffargarh also confirmed that the Property is situated beyond prohibitory zone. Upon failure to execute Conveyance Deed, the Petitioner again moved the revenue hierarchy and fresh Reports dated 26.04.2006 by the Patwari, Qanungo and Tehsildar concerned confirmed that the Property is located outside the prohibitory zone and the Petitioner was entitled for the grant of proprietary rights.

6.Hence, it is established that at the time of grant of allotment of the Property, it was not situated in the prohibited zone. Therefore, subsequent notification, if any, regarding extension of the prohibited zone cannot be applied retrospectively to deny the vested and accrued rights of the Petitioner. The crucial date for determination of eligibility regarding grant of proprietary rights in terms of the Notification as to whether the tenancy fell inside or outside the prohibited zone, was settled by the Hon'ble Supreme Court of Pakistan in case titled, “Province of Punjab through District Collector v. Ghulam Muhammad” (1994 SCMR 975). It was unequivocally held therein that the date of allotment and not the date of conferment of proprietary rights is relevant date to determine as to whether the Property fell within or outside the prohibited zone. This view was followed in cases titled “Province of Punjab through Secretary Colonies, Board of Revenue, Lahore & others v. Ch. Abdus Sattar” (2012 SCMR 1007); and “Province of Punjab & others v. Miraj Din & others” (2008 MLD 89). The unreported case relied upon by the learned Law Officer is distinguishable because the allotted land therein came in prohibitory zone soon after the allotment and transfer of its possession to the tenant could not be established. Further, the allotted land therein before the grant of proprietary rights stood merged in much bigger chunk of land notified and transferred for construction of an official project. If the allotted land was excluded, the project could not have been completed. The challenge brought before the Court did not array the affected transferee as a necessary party. Hence, the facts and circumstances of the referred case are not applicable in the instant case.

7.In view of the above, the instant Petition is accepted; the Petitioner is held entitled to be consideration for the conferment of proprietary rights and execution of Conveyance Deed; and accordingly, Respondent No. 1 is directed to decide the matter afresh within a period of 90-days from the date of this Order in accordance with law.

(Abid Hussain Chattha) Judge *WaqaR*