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Civil Petition No. 541 of 1980, decided on 17th January, 1983.

(From the order dated 6‑2‑1980 of the Lahore High Court passed in Writ Petition No. 3276 of 1979).

‑‑ Art. 185(3) read with Art. 199‑Petitioner occupying, on Tehbazari basis, State land forming part of public park reserved in housing Scheme‑Board of Revenue refusing plea of petitioner for sale of such land, objecting to competency of Municipal Committee to lease out same on Tehbazari basis and directing that land be sold by public auction‑High Court while dismissing petitioner's writ petition filed against Board of Revenue's order, holding Board's direction to put disputed land to public auction as without lawful authority and directing Municipal Committee to dispossess petitioner and restore site as part of public park‑Order of High Court found to be in accord with general public policy and law relating to public amenities‑Held, cannot be interfered with by Supreme Court.

S. M. Akhtar Mir, Advocate Supreme Court instructed by Muhammad Aslam Chaudhary, Advocate‑on‑Record for Petitioners.

Zafarullah Cheema, Advocate Supreme Court instructed by S. Wajid Hussain, Advocate‑on‑Record for Respondent No. 4.

Sh. Abdur Rehman, Advocate 'Supreme Court instructed by Sh. Abdul Karim, Advocate‑on‑Record for Respondent No. 5.

Date of hearing : 17th January, 1983.

The dispute relates to an area measuring 3 marlas 5 1/2 sarsais within the municipal limits of Faisalabad Town, which the petitioners have been occupying on Tehbazari basis. They applied to the Board of Revenue for sale of the area in their favour but the plea was refused by the Board of Revenue vide order dated 2f‑4‑1976. The Board observed that the land which belongs to the State was under the management of the District Council and as such the Municipal Committee had no right to lease it out to the petitioners on Tehbazari basis and directed that the same be sold by open auction in which the petitioners could also participate if they so liked.

2. The petitioners challenged the order by a writ petition which was dismissed by the impugned order announced on 6‑2‑1980. Hence this petition.

3. The High Court after a detailed examination of the nature of the property held:

"Admittedly the site was encroached upon by the petitioners in the year 1968 and then for the use of the site they procured the licence of encroachment from the Municipal Officer in the year 1969, who acted in granting the licence without lawful authority as the site was the part of the public park reserved in the Scheme sanctioned by the Government and the Municipal Committee was given authority for the purposes of maintenance of the Scheme."

From a plan of the Scheme, produced by the petitioners themselves, the High Court found that the site formed part of a public park reserved in the Scheme for the benefit of the persons settled under the Scheme and that there was no authority given by the controlling agency to the Municipal Committee for issuing licences for encroachment and that, therefore, the petitioners could lay no claim on the strength of such licences. The High Court, therefore, not only dismissed the petitioners writ petition as being devoid of merit but also held that the order of the Board of Revenue to the extent of the direction to put the property to public auction was without lawful authority and of legal effect. The High Court further observed that:

"The Municipal Committee, who has encouraged the petitioners by issuance of licence of encroachment unauthorizedly is under legal duty to dispossess the petitioners if not already dispossessed, and restore the site as part of the public park after demolishing the superstructure raised thereon."

4. The contention is that suo motu power not being available to the High Court for the exercise of its constitutional jurisdiction, it was not competent in the petitioners' petition to have declared against the Board's direction to sell the property by public auction or to enjoin upon the Municipal Committee to dispossess the petitioners. The High Court could have stopped at the dismissal of the petitioners writ petition but since the High Court found that the policy of the Scheme was being frustrated by allowing encroachments on the park land and later on disposing of the same by sale, had made the further order. Though the legality of that further order is assailed before us but we are not inclined to interfere with the same because it otherwise accords with the general public policy and law relating to public amenities. It is also asserted that a decision had in fact been taken in favour of the petitioners on 29‑8‑1974 by the Member', Board of Revenue, who had observed that the petitioners' request was "reasonable" and directed the Commissioner to forward a regular proposal for the sale of the land by private treaty. From this it is urged that the petitioners had acquired a right to sale of the land in their favour. We do not see how the petitioners can base any right or entitlement upon the letter of the Board of Revenue dated 29‑8‑1974 because the same forms part of intra‑departmental correspondence and does not constitute an adjudication of the petitioners' request. Moreover, no copy of the letter, on the face of it, appears to have been endorsed to the petitioners.

5. The petition is, therefore, dismissed.

Petition dismissed.

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